Bending the jurisprudence and UK threats to leave the ECHR

Introduction

 

The UK government has been threatening to alter its relationship with the ECHR and repeal the Human Rights Act (HRA), which makes the ECHR part of UK law, since the Coalition government was elected in 2010. The Conservative Party has, in fact, had such a policy of repealing the HRA since 2006.   In 2014 that party set out detailed proposals to amend the Human Rights Act, and to withdraw from the Convention.[1] The Conservative government, newly elected in May 2015, is about to produce a detailed consultation paper designed to implement some (or all) of these proposals and, although this has been delayed again, its is expected to emerge in the next couple of months.

 

Meanwhile the Committee of Ministers of the Council of Europe have failed to enforce judgments against the UK in relation to the right of prisoners to vote in elections. The first of the judgments on prisoner voting was given as far back as 2006.[2] The Court itself seems particularly reluctant to award compensation to applicants in subsequent cases which have found continuing violations of this right to vote.[3]

 

In parallel there have been a series of cases during this same period taken against the UK where, perhaps surprisingly for some expert commentators, no violation has been found by the ECtHR. This article will explore whether the Court’s judgments have, in fact, given the UK greater leeway than might be expected and will ask whether the Court has been influenced by the Conservative Party’s attitude to the ECHR, the political discussions in the UK and the threats to the Human Rights Act and the UK’s membership of the ECHR.[4]

 

Changes proposed

“… the time has now come for a new solution that protects liberties in this country that is home-grown and sensitive to Britain’s legal inheritance that enables people to feel they have ownership of their rights and one which at the same time enables a British Home Secretary to strike a common-sense balance between civil liberties and the protection of public security.”[5]

In 2006 David Cameron, the leader of the Conservative Party and now Prime Minister, suggested that the HRA 1998 ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country, and at the same time it hasn’t really protected our human rights’ and committed his party to make changes.

Reform of the Human Rights Act has been under consideration almost since its inception and decisions of the domestic courts and the ECtHR have been subject to considerable criticism in many newspapers. Fury over the Human Rights Act reached fever pitch as a result of the long-delayed legislation brought forward to give prisoners the right to vote in line with the decision of the European Court in Hirst v UK (No 2) in 2006. The media and many politicians denounced the Convention and called for the United Kingdom to remove itself from the jurisdiction of the European Court.

 

The Labour Government in 2007 published a Green Paper[6] and a statement[7] exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The Joint Committee on Human Rights of the UK Parliament contributed to the debate by undertaking a formal inquiry into a Bill of Rights, which reported in August 2008.[8] It found that the case for a Bill of Rights had been made out, but emphasized that the Bill could not be a vehicle for diluting the protections of the Human Rights Act; rather, it should add to those rights already protected.

 

In March 2009, the Labour Government launched a consultation process on a Bill of Rights in a Green Paper, Rights and Responsibilities: Developing our Constitutional Framework.[9] The Green Paper set out preliminary proposals for a ‘Bill of Rights and Responsibilities’, but the 2010 general election intervened before the consultation was completed. The Conservative Party went into the election with a commitment to repeal the HRA – in fact it was in David Cameron’s top three of the changes he wanted his government to make.[10] The Liberal democrats on the other had wished to see it preserved and the founding document of the Coalition Government resolved this disagreement as follows:

 

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”[11]

 

The Commission that was subsequently established reported at the end of 2012 but there was, however, no consensus on what, if anything, needed to change.[12] However there was concern by some members of the Commission that the debate in the Commission was moving away from the objectives set out in the Coalition agreement towards a discussion of removing rights, and particularly towards withdrawing from the ECtHR.

 

The UK Government also partly responded to this criticism of the HRA and ECHR by using its chairmanship of the Council of Europe to push on with further reforms of the Court to ‘rebalance’ its relations with national courts and parliaments. This resulted in the “Brighton Declaration”[13] and in turn, two new protocols, the first of which, protocol 15, will impose (amongst other things) further restrictions on access to the Court and, might push the Court to be more “careful” in its judgments. The Protocol 14 changes and the other internal changes made by the Court itself have already enabled the court to clear most of its backlog. The stricter process for filing applications themselves, which was implemented by the Court itself at the beginning of 2014, has also likely to have an effect on the Court’s future workload. When implemented Protocol 15 will:

 

  • add a new recital to the preamble to the Convention stressing the margin of appreciation enjoyed by states;
  • reduce the maximum age of judges on selection from 70 to 65;
  • remove the right of a party to object to a case being dealt with by the Grand Chamber;
  • reduce the time for making applications from six months to four months; and
  • make it easier for specified cases to be declared inadmissible.

 

Although the UK’s original proposals for reform were watered down, pressure for reform has led to a wider ranging review of the long-term future of the Court, the consequences of which are difficult to predict.

 

Obviously human rights and the ECHR, more particularly, have been criticized by the media and politicians in the UK for many years. For instance, following McCann v UK in 1995, which concerned Article 2 and became a cornerstone of the Court’s jurisprudence, the Daily Mail newspaper reported:

 

“Ministers said they would ignore it and were not ruling out the ultimate sanction of a withdrawal from the court’s jurisdiction. ‘Every possible option is being kept open, including walking away,’ said one insider.

 

Downing Street said the ruling in the so-called Death on the Rock case ‘defied common sense’. Deputy Prime Minister Michael Heseltine branded it ‘ludicrous’…

 

Mr Heseltine will head a group of senior Ministers – including Home Secretary Michael Howard, Foreign Secretary Malcolm Rifkind and Leader of the Commons Tony Newton – who will take a ‘long, cool look’ at the options available.”[14]

 

Even before the HRA had come into force it was being attacked by some senior judges:

 

“A field day for crackpots, a pain in the neck for judges and a gold mine for lawyers.[15]

 

The media has consistently criticized judgments of the domestic courts, the ECtHR and the HRA, often distorting the facts.[16]

“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back The issue of prisoners’ voting rights was transformed into a national interrogation in the UK about the legitimacy of the ECtHR. The Daily Mail led the charge.”[17]

Cases against the UK

 

Any analysis of any change in the ECtHR’s attitude to the UK needs to take account of the approach taken by the higher courts in the UK to the jurisprudence of the ECtHR. Obviously before the HRA the domestic courts were not obliged to take account of the ECtHR’s jurisprudence and even their discretion to do so was severely limited.[18] After October 2000 this all changed and section 2 of the HRA required the domestic courts to take this jurisprudence into account. No national court should “without strong reason dilute or weaken the effect of the Strasbourg case law” (Lord Bingham)[19]

 

“However, in rare circumstances, the Supreme Court has effectively sent issues back to Strasbourg for reconsideration.”[20]

 

This is a reference to the judgment of the Supreme Court R v Horncastle in 2009. The case concerned Article 6 and hearsay evidence. Lord Philips said that although the requirement to “take into account” the Strasbourg jurisprudence would “normally result” in the domestic court applying principles that are clearly established by the ECtHR.

 

“There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course”.

Is there a trend?

Any attempt to discern a trend in the approach taken by the ECtHR over the last five to ten years is very difficult. First, because of the (statistically) small number of violations found against the UK:

“The UK has a very low ‘rate of defeat’ at Strasbourg. Of the nearly 12,000 applications brought against the UK between 1999 and 2010, the vast majority fell at the first hurdle. Only three per cent (390 applications) were declared admissible. An even smaller proportion of applications – 1.8 per cent (215) – eventually resulted in a judgment finding a violation. In other words, the UK ‘lost’ only one in fifty cases brought against it in Strasbourg. If adjustment is made for repetitive cases (i.e. cases where the violation has the same root cause and therefore multiple judgments are counted as a single judgment), the rate of defeat falls to 1.4 per cent (161).”[21]

Interestingly, the number of cases against the United Kingdom lodged with the ECtHR before and after the Human Rights Act came into force in 2000 seems to have remained roughly the same. The number of allocated cases against the United Kingdom increased considerably in 2010 (2,745), twice that in 2008 or 2009, but returned to 912 for 2013.[22] The Court found only 8 violations of the Convention in 2013, around the usual average. The number of cases ‘communicated’ (referred to the Government requiring a response, the initial sifting stage) has reduced from 163 in 2000 to 35 in 2013.

In the four years ending 31st December 2015 there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found. This does not seem to be particularly (statistically) out of step with previous periods. Obviously teasing out whether these and other such cases are out of kilter with the thrust of the continuing development of the jurisprudence is no easy task.

 

Showing any kind of statistical trend in judgments is fraught with difficulties for the following reasons:

 

  • it is necessary to select out those cases where there is more than one judgment stemming from the same law, policy or procedure;
  • there are also additional complications which concern how to deal with multiple alleged violations in one application from one person, when applications that are joined, where admissibility decisions are reserved for the Court’s judgment;
  • different arrays of judges may be making decisions in UK cases and of course there will be variations between sections and the Grand Chamber;
  • some violations which are based on systemic issues span across any time period selected for comparison as will the subsequent judgments;
  • the small sample size, the significant delay from application to judgment and the fact that the Court has had workload difficulties which have now been reduced during the period of interest makes it difficult to make proper comparisons;
  • admissibility rules have changed during the period[23] as have the procedural rules[24]; and
  • the circumstances in the UK have varied considerably themselves. New governments have taken over, new laws have been made or repeal and new practices have been adopted.

 

It is also likely that even if the dominant political position in the UK was having an influence in UK cases in the ECtHR it is unlikely to be uniform across different kinds of cases. For instance:

 

  • cases are less likely to be controversial if the law, policy or procedure that was causing a problem has already been changed or is about to be changed;
  • cases are also unlikely to be of concern if they relate to a unique set of facts (unless they are about a controversial person or group);
  • variations of approach depending on the article is issue
  • the media’s reaction to a possible finding of a violation (and any “pet hates” they might have may also vary the possible nature of the impact on the judges); and
  • judges will be influenced in different ways by different criticisms of different cases.

 

Other factors

 

Obviously any analysis is also fraught with the difficulty that the analyst might have his or her own views about the correctness of any particular judgment or set of judgments, either because of a view about how far the courts should go in “balancing” the approach taken by parliaments and the state or because of issues of comity, neatness, strict precedence or conformity with judgments from other jurisdictions.

 

Is it possible to show that there is a difference in treatment of the UK compared with other similar countries the Court slowing down in its judicial activism and expansion of its jurisprudence? Perhaps this is not just about UK?

 

For instance a new approach to the margin of appreciation based on the nature of the consideration by a parliament of the offending law, policy or procedure.[25]

 

How should we take account of decisions referred or appealed to the Grand Chamber? Are they less likely to be influenced or more?

 

Evidence

 

Evidence could also be sought by way of obvious “errors”, a case changed the nature or direction of jurisprudence, dissents, critical articles, critical judgments by other courts, cases overturning by Grand Chamber, or subsequent change of direction of jurisprudence suggesting the original decision against the UK was flawed.

 

Cases

 

I looked at the 80 or so judgments in the last four years where the UK was the respondent. I identified 18 of these, including all the eight cases decided by the Grand Chamber which might “appear to be” controversial or difficult (and where there was at least one finding of no violation) and subsequently narrowed this down to five cases to discuss today. In doing so I have picked up the issues from the dissents and in some of the public comments from experts.

 

Al-Khawaja (15.12.11)

 

This case concerned Article 6 and hearsay evidence used in a criminal trial. The issue started with the Al-Khawaja chamber judgment in the ECtHR (20.01.09) which was then considered by the Supreme Court in R v Horncastle (09.12.09). In the latter case Lord Philips said that although the requirement to “take into account” the Strasbourg jurisprudence would “normally result” in the domestic court applying principles that are clearly established by the ECtHR.

 

“There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course”.

 

Following this judgment of the Supreme Court, the Grand Chamber then gave judgment in Al-Khawaja and Tahery v UK (15.12.11). The Strasbourg court took the UK Supreme Court’s judgment into account “demonstrating the concept of ‘dialogue’ between the two courts”.[26] Finally the ECtHR then considered the case of Horncastle itself and found no violation of article 6 despite the use of hearsay evidence leading to the conviction (16.12.14). The press release from the Court on Horncastle stated:

 

“This judgment concludes the judicial dialogue on the admissibility of hearsay evidence in criminal trials which commenced with the delivery of this Court’s Chamber judgment in Al-Khawaja and Tahery. The Supreme Court, when hearing the present applicants’ appeal, examined that judgment and invited the Grand Chamber to accept a request to rehear the case. The subsequent Grand Chamber judgment in Al-Khawaja and Tahery agreed with the Supreme Court that the sole or decisive rule should not be applied in an inflexible way.”

However two of the dissenting judges in the Court in the Grand Chamber in Al Khawaja stated their objection to this new approach by the majority of the Court:

“To our knowledge this is the first time ever that this Court, in the absence of a specific new and compelling reason, has diminished the level of protection. This is a matter of gravest concern for the future of the judicial protection of human rights in Europe.”

 

Professor Conor Gearty said of this new approach:

 

Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.[27]

 

A respected legal commentator from the UK said before the judgment:

 

“… the wiser decision for the human rights judges would be to join the dialogue initiated by Lord Phillips and to modify their previous decision in Khawaja. If they show respect for decisions of the UK courts now, perhaps the UK government will show more respect for their rulings in future.”[28]

 

In relation to Tahery, where the Court did find a violation, another commentator said:

 

“Because this is an “application breach” type of case – in other words, what is complained about is a not a systematic breach of Convention rights automatically caused by UK law, as for instance in the case of prisoners’ voting, but merely that a particular ruling on evidence in one case was unfair – there is little or no risk of any ongoing stand-off or “dialogue” between Strasbourg and the UK courts developing into a major question of international human rights compliance.”[29]

 

Animal Defenders (22.04.13) 

 

The facts:

 

“In 2005 the applicant began a campaign called ‘My Mate’s a Primate’ which was directed against the keeping and exhibition of primates and their use in television advertising. As part of the campaign, the applicant wished to broadcast a 20-second television advertisement. The proposed advertisement opened with an image of an animal’s cage in which a girl in chains gradually emerged from the shadows. The screen then went blank and three messages were relayed in sequence: “A chimp has the mental age of a four year old”; “Although we share 98% of our genetic make-up they are still caged and abused to entertain us”; and “To find out more, and how you can help us to stop it, please order your £10 educational information pack”. In the final shot, a chimpanzee was in the same position as that of the girl.”[30]

 

Because the objectives of the advertisement were “wholly or mainly of a political nature” section 321(2) of the Communications Act 2003 prohibited the broadcasting of the advertisement. The applicant challenged the ban but was unsuccessful and on 12 March 2008 the House of Lords unanimously dismissed the applicant’s appeal. The ECtHR chamber relinquished the case to the Grand Chamber which subsequently found no violation of article 10 but only by the slimmest of majorities (9 votes to 8). Some flavor of the divide between the two sets of judges can be illustrated by a couple of quotes from those dissenting.

 

“…there can be no double standards of human rights protection on grounds of the “origin” of the interference. It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission. Taken to its extreme such an approach risks limiting the commitment of State authorities to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention. Where the determination of the public interest and its best pursuit are left solely and exclusively to the national legislator, this may have the effect of sweeping away the commitments of High Contracting Parties under Article 1 of the Convention read in conjunction with Article 19, and of re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey. The doctrine of the margin of appreciation, which was developed to facilitate the proportionality analysis, should not be used for such purpose.[31]

 

“The ban was […] applied independently of the content of the message: no matter that the latter drew the public’s attention to a matter of public interest (the ill-treatment of animals) and that no one had suggested that it was in any way shocking or reprehensible. The ban was also applied independently of the advertiser’s identity: no one had claimed that the applicant NGO was a financially powerful body with the aim or possibility of endangering the broadcaster’s impartiality or unduly distorting the public debate, or that it served as a smokescreen for such a group. All that it wished to do was to take part in a general debate on animal protection. To illustrate the scale of the ban’s effect in the applicant NGO’s case, one need only compare its situation to that of a commercial firm: the latter would have had full freedom, limited only by its financial resources, to screen advertisements using animals to promote its products, an approach directly contrary to the values of the applicant NGO.”[32]

 

In fact in very similar circumstances the Court in 28.06.01 in VgT Verein gegen Tierfabriken v. Switzerland decided that:

 

“…it has not been argued that the applicant association itself constituted a powerful financial group which, with its proposed commercial, aimed at endangering the independence of the broadcaster; at unduly influencing public opinion or at endangering equality of opportunity among the different forces of society. Indeed, rather than abusing a competitive advantage, all the applicant association intended to do with its commercial was to participate in an ongoing general debate on animal protection and the rearing of animals. The Court cannot exclude that a prohibition of “political advertising” may be compatible with the requirements of Article 10 of the Convention in certain situations. Nevertheless, the reasons must be “relevant” and “sufficient” in respect of the particular interference with the rights under Article 10… In the Court’s opinion, however, the domestic authorities have not demonstrated in a “relevant and sufficient” manner why the grounds generally advanced in support of the prohibition of political advertising also served to justify the interference in the particular circumstances of the applicant association’s case.”[33]

 

Tom Lewis, Reader at the Nottingham Law School commented:

 

“ADI might be portrayed as an example of successful dialogue between Strasbourg and the UK’s legislature and courts:  the former decided to revisit its earlier approach, taking on board the considered views of the latter. A less charitable view is that in the wake of Hirst v UK and the prisoners voting saga, the Strasbourg Court was wary of being accused of again meddling in British democracy and simply lost its nerve, preferring to overturn its previous case law than risk another confrontation with the UK government and press.”[34]

 

Austin (15.03.12)

 

The applicants:

 

“… attended a protest against globalisation outside the World Bank before walking with other protesters to Oxford Circus, arriving at about 2 p.m. Around 3.45 p.m. Ms Austin needed to leave the demonstration to collect her daughter from the crèche. She explained her situation to two police officers maintaining the cordon but was told that she could not leave and that it was not known how long it would be before she would be able to leave the area…”

 

The second applicant “was told by a police officer that he could not walk down Oxford Street because of the approaching crowd of demonstrators and was advised to take Margaret Street, a parallel road to the north. The applicant followed this advice but between Margaret Street and Regent Street he was met by a wall of riot police with shields and helmets moving south. The applicant was forced into Oxford Circus at about 2.30 p.m. He immediately asked to be allowed out of the cordon and was informed that there was an exit for non‑protesters at the Bond Street side of Oxford Circus; when he went there he was told that there was no exit. The applicant was not able to exit the cordon until 9.20 p.m.

 

The third applicant had no connection with the demonstration. She worked in the Oxford Circus area and was on her lunch break at 2.10 p.m. when she was prevented from returning to her workplace by a line of police officers blocking the road. She turned and tried to pass in another direction but found that that exit was also now blocked by police officers, who began to advance towards her. She was held within the cordon at Oxford Circus until 9.35 p.m. She and others repeatedly requested to be allowed to leave the cordoned area but was told by the policemen she approached that they were under orders to allow no one to pass.

 

The fourth applicant also worked in the Oxford Circus area and was also caught up in the cordon while walking through Oxford Circus on his lunch break. He was able to leave at approximately 8 p.m.”[35]

 

“It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended because of the violent behaviour of those within and outside the cordon. Between about 3 p.m. and 6 p.m., the police kept the situation under review but the arrival of a new group of protesters and the dangerous conditions within the crowds led them to consider that it would not be safe to attempt to release those within the cordon. Controlled release was recommenced at 5.55 p.m. but stopped at 6.15 p.m.; resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30 p.m. and again abandoned; then carried out continuously, in groups of ten, until the entire crowd had been released at 9.45 p.m.”[36]

 

The Court by 14 votes to 3 found no violation of article 5 and concluded:

 

“…that there was no deprivation of liberty, is based on the specific and exceptional facts of this case… It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the “type” of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within Article 5.[37]

 

In the dissent the minority stated:

 

In terms of the principles governing the application of Article 5 of the Convention… the majority’s position can be interpreted as implying that, if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable for two reasons.

 

  1. Firstly, the Court has always held that the aim or intention of a measure cannot be taken into account in assessing whether there has been a deprivation of liberty. These aspects are relevant only in assessing whether the deprivation of liberty was justified for the purposes listed in sub-paragraphs (a) to (f) of Article 5 § 1. In other words, the wording of Article 5 in itself strikes the fair balance inherent in the Convention between the public interest and the individual right to liberty by expressly limiting the purposes which a deprivation of liberty may legitimately pursue.

 

  1. Next, regard being had to the structure and wording of Article 5 § 1 of the Convention, there can be no distinction in principle between measures taken on public-order grounds and measures imposed for any other legitimate/public-interest purpose. In other words, there is no reason to treat deprivations of liberty resulting from public-order considerations any differently from other kinds of deprivation of liberty for which this provision is invoked. Otherwise, States would be able to “circumvent” the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5 § 1 (a) to (f), as long as they could show that the measure was necessary.”[38]

 

David Mead, University of East Anglia commented:

 

“The Court will not have been unaware of the recent public and political reaction following Othman v UK, holding that Abu Qatada could not be deported to Jordan. Interim, we have had the leaking of the Brighton Declaration on the future of the Court (discussed on this ‘blog by both Mark Elliott and Noreen O’Meara). Is it surprising then that the narrowing of protection in Austin arose at a time when the Court and its judges might feel under heavy threat from politicians in member states – and indeed from leading judges? It would explain why it felt it could (should?) depart from A v UK, the Belmarsh case in 2009, which the three dissenting judges highlighted.[39]

 

“Was the ECtHR influenced by the current Strasbourg-sceptic rhetoric from London?  This cannot be said with any certainty.  However, it is interesting to note how the court emphasized the living instrument doctrine and stated that “subsidiarity” was at the heart of the convention.  Furthermore, wide discretion was to be given to the Police.  Such statements may be seen as designed to address some of the UK government’s criticisms of how the court has operated.   Also, the court’s decision in Austin is not entirely easy to reconcile with its decision in Gillan and Quinton where it was held that detention for 30 minutes amounted to deprivation of liberty given that there was an element of coercion.”[40]

 

 

Ibrahim (16.12.14)

 

The facts

 

“On 7 July 2005, four suicide bombs exploded on three underground trains and one bus in central London, killing fifty-two people and injuring hundreds more.

 

Two weeks later, on 21 July 2005, the first three applicants, Mr Ibrahim, Mr Mohammed and Mr Omar, and a fourth man, Mr Hussain Osman, detonated four bombs contained in rucksacks at separate points on the London public transport system…

 

Although the four bombs were detonated, in each case the main charge, liquid hydrogen peroxide, failed to explode. Subsequent testing revealed that this was most likely the result of an inadequate concentration of the hydrogen peroxide: the hydrogen peroxide found in the bombs had a lower concentration than that which would have been necessary for it to explode.”[41]

 

Following the arrests of the applicants, access to their lawyers was denied initially and a safety interview took place.

 

“A “safety interview” is an interview conducted urgently for the purpose of protecting life and preventing serious damage to property. The detainee is questioned in order to secure information that may help avert harm to the public, by preventing a further terrorist attack, for example. The interview may occur in the absence of a solicitor and before the detainee has had the opportunity to seek legal advice.”[42]

 

Material from those interviews was used at the trial despite attempts by their lawyers to have it excluded. By 6 votes 1 the Chamber decided that there was no violation of article 6 although the matter is now to be considered by the Grand Chamber. The Chamber Court stated in conclusion:

 

“…the Court finds that, taken cumulatively, the counterbalancing safeguards contained in the legislative framework governing safety interviews, the careful application of that legislative framework by the police in the applicants’ cases, the trial judge’s ruling on admissibility and his directions to the jury and the strength of the other prosecution evidence against the first three applicants mean that no undue prejudice can be held to have been caused to their Article 6 § 1 right to a fair trial as a result of the denial of legal advice to them before and during their safety interviews, followed by the admission of the statements made during those interviews at their trial. Accordingly, it concludes that there has been no breach of Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention in respect of the first three applicants.”[43]

 

However the dissenting judge said:

 

“While the case-law of this Court sees the privilege against self-incrimination as one of the basic principles of Article 6 of the Convention, there is little doubt that the “minimum right to legal assistance” enshrined in Article 6 § 3 (c) serves as one of the basic guarantees for the protection of this privilege. In the present case, the majority agreed with the domestic authorities and the Government that “the police were concerned that access to legal advice would lead to the alerting of other suspects” and were satisfied that, at the time of the “safety interviews”, the delayed access to legal advice was justified by “the need to obtain, as a matter of critical urgency, information on any further planned attacks and the identities of those potentially involved in the plot, while ensuring that the integrity of the investigation was not compromised by leaks”, a need which “was clearly of the utmost compelling nature”. While I am fully aware of the difficult and urgent situation, which called for “safety interviews” for the purposes of obtaining information that was urgently necessary to remove imminent danger and save the lives of many, I find myself unable to follow the argument that preventing access to a lawyer may be justified for the purposes of “ensuring that the integrity of the investigation was not compromised by leaks”. This argument appears to be broadly dismissive of the very essence of the right guaranteed by Article 6 § 3 (c), being potentially applicable to any investigation proceedings, and reflects a generalised view that lawyers constitute a threat to justice by definition.”

 

“…the applicable legal framework, which appears to leave no space for the right to remain silent, the erroneous or omitted cautions against self-incrimination, taken together with the absence of legal assistance –, amounted to “coercion or oppression in defiance of the suspect’s will”. A proper analysis of this situation may lead to the conclusion that, taken together, these circumstances inevitably trap suspects in a situation where both their silence and their lies may be lawfully interpreted to their detriment, thus leaving space only for confession. The compatibility of this situation with the principles in Saunders is questionable. It appears that in this regard the majority were satisfied with the observation that they were neither arrested, nor subjected to any ill-treatment. I am not convinced that this suffices for the purposes of ruling out “coercion” within the meaning of the Court’s case-law. In this regard I would simply mention the principles reiterated in Gäfgen where, with regard to “the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterate[d] that these [were] generally recognised international standards which [lay] at the heart of the notion of fair procedures under Article 6”. [44]

 

Vinter (09.07.13) and Hutchinson

 

The applicants were all imprisoned and given life sentences for very serious offences but argued that the “whole life order” imposed on them was a violation of article 3. The effect of a whole life order is that the prisoner cannot be released other than at the discretion of the Secretary of State. The Secretary of State will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated.

 

The Chamber (17.01.12) found, by four votes to three, no violation of article 3. In the subsequent Grand Chamber proceedings the UK Government argued that:

 

“Relying on the Court of Appeal’s judgment in Bieber and the Secretary of State’s power of release contained in section 30 of the 1997 Act, the Government submitted that a whole life order was not an irreducible life sentence. The Secretary of State’s power was wide and non-prescriptive. When exercising it, he was required to act compatibly with the Convention. Thus, should the applicants ever seek to contend that their continued detention was not justified on any penological grounds, and if that were shown to be the case, section 30 would enable them to be released. Any decision by the Secretary of State to the contrary would be amenable to judicial review.”[45]

 

This did not persuade the judges and a violation was found by the Grand Chamber by 16 votes to 1.

 

Hutchinson (03.02.15)

 

This case also concerned whole life orders and but the Chamber found no violation by 6 votes 1:

 

“…subsequent to the Court’s consideration of section 30 in Vinter and Others the Court of Appeal delivered a judgment in which it expressly responded to the concerns detailed in Vinter and Others. In R v. Newell; R v McLoughlin the Court of Appeal held that it was of no consequence that the Lifer Manual had not been revised, since it was clearly established in domestic law that the Secretary of State was bound to exercise his power under section 30 in a manner compatible with Article 3. If an offender subject to a whole life order could establish that “exceptional circumstances” had arisen subsequent to the imposition of the sentence, the Secretary of State had to consider whether such exceptional circumstances justified release on compassionate grounds. Regardless of the policy set out in the Lifer Manual, the Secretary of State had to consider all the relevant circumstances, in a manner compatible with Article 3. Any decision by the Secretary of State would have to be reasoned by reference to the circumstances of each case and would be subject to judicial review, which would serve to elucidate the meaning of the terms “exceptional circumstances” and “compassionate grounds”, as was the usual process under the common law. In the judgment of the Court of Appeal, domestic law therefore did provide to an offender sentenced to a whole life order hope and the possibility of release in the event of exceptional circumstances which meant that the punishment was no longer justified.”[46]

 

The dissenting judge stated however:

 

“The reasoning of the majority in the present case is based on the premise that the Grand Chamber erred in its understanding of the domestic law as expressed in the case of Vinter and Others in 2013, and also on the fact that, since “it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation” (see paragraph 24 of the judgment), they were prepared to accept that the correct interpretation of the domestic law was provided in the post-Vinter judgment delivered by the special composition of the Court of Appeal on 18 February 2014 in the case of R v. Newell; R v. McLoughlin [2014] EWCA Crim 188. In that judgment, the Court of Appeal disagreed with the Grand Chamber’s views on the clarity and certainty of the domestic law as first set out in R v. Bieber [2009], and reaffirmed that this interpretation was sufficiently clear and certain. Assuming that this is so, I fail to see the bearing of this progressive development of the law on the applicant’s situation a year earlier, in 2008, when his complaints were submitted to the Court, or at the time of their examination by the Court in 2015.”

 

One academic commentator put it this way:

 

“Does this case signal a trend in the Court’s case law? Are there going to be more highly politicised judgments in favour of the United Kingdom prior to the 2015 elections? Is the European Court of Human Rights a strategic actor that can sacrifice certain achievements in certain areas of human rights protection in order to save the “Strasbourg project”? The Court’s judgments in the next few months are crucial for answering these questions.”[47]

 

The case of Hutchinson was heard by the Grand Chamber on 21st October 2015 and the judgment is now eagerly awaited.

 

“…we must consider the political or diplomatic repercussions of such a decision. The decision of the European Court in Hutchinson will be viewed by the government as evidence that the Court is now prepared to leave the details of such questions to the domestic authorities. …The Government will hope that the Grand Chamber will take a similar approach and that the secretary can deal with these cases as and when they wish (if at all). At present the vast majority of whole lifers are not eligible for review even under the Vinter ruling, and at the very least the Government will be given time without committing itself to formulating a Convention friendly policy. Indeed, if the decision is overturned the Government will undoubtedly revive its plans to scrap the Human Rights Act – delayed last month – with renewed vigour.

 

It is to be hoped that the Grand Chamber’s judgment is not, as the first judgment appeared to be, affected by diplomatic reasons and a desire to make peace with member states over the issue of subsidiarity.” [48]

 

Conclusion

 

Are the judges in the ECtHR are responding to the local political pressure to repeal the HRA and alter the UK’s relationship with the ECHR? Probably not. Is it an influencing factor? Probably.

 

I believe that the jurisprudence on the UK from the ECtHR is less strident and, certainly, more sophisticated. This has probably helped in toning down the recent criticisms in the UK of the ECtHR and helped to ensure that proposals for the UK to withdraw from the ECHR are not being pushed quite so hard. So from the point of view of the long-term promotion and protection of human rights in the UK this is probably a good thing. However I am disappointed that the Court has taken a wrong turn in the cases I have considered. From the point of view of human rights across Europe and beyond it is too early to tell whether the Court’s approach will turn out to have been the right one.

 

 

 

[1]https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf

[2] Hirst v the United Kingdom (No 2)

[3] Firth and Others v UK

[4] For a comprehensive analysis of the context, see The UK and European Human Rights, A Strained Relationship?, Hart, 2015

[5] June 26, 2006, http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution

[6] The Governance of Britain, 2007.

[7] Prime Minister’s statement on constitutional reform, HC, col 819 (3 July 2007).

[8] JCHR, A Bill of Rights for the UK? 29th Report (2007–2008), HL 165-I, HC 150-I.

[9] Cm 7577, 2009.

[10] October 2009, Conservative Party conference

[11] May 2010.

[12] The Commission on a Bill of Rights’ report – A UK Bill of Rights? – The Choice Before Us, 18 December 2012, Ministry of Justice.

[13] High Level Conference on the Future of the European Court of Human Right: Brighton Declaration, 20th April 2012, Council of Europe.

[14] Daily Mail, 28 September 1995

[15] Lord McCluskey, Scotland on Sunday, 6 February 2000.

[16] Human Rights Futures Project, LSE November 2011, http://www.lse.ac.uk/humanRights/documents/2011/KlugHRAMedia.pdf

[17] The Future of the European Court of Human Rights’, German Law Journal, 12, 10: 1862-77. Michael O’Boyle (Registrar of the ECtHR), 2011

[18] Using Human Rights Law in English Courts, Hart, 1997, Murray Hunt

[19] R (Ullah) v Special Adjudicator

[20] UK Supreme Court, https://www.supremecourt.uk/about/the-supreme-court-and-europe.html

[21] The UK and the European Court of Human Rights, Equality and Human Rights Commission, 2012, Alice Donald, Jane Gordon and Philip Leach

[22] Analysis of statistics 2013, the jump in numbers is probably a result of an influx of prisoners’ right to vote cases.

[23] Protocol 14

[24] The strict requirement for applications to be made on the prescribed form and including all the necessary information within the six months time limit.

[25] The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments, Matthew Saul, Human Rights Law Review, Vol 15, No 4, 2015

[26] See footnote 18

[27] UK Constitutional Law Association, 9 January 2012

[28] The Guardian, 12 December 2011

[29] Head of Legal Blog, 15 December 2011

[30] Para 9

[31] Para 10, dissent by Judge Ziemele and others

[32] Para 19, dissent by Judge Tulkens and others

[33] Para 75

[34] Oxford Human Rights Hub, 25 April 2013. See also Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?, Tom Lewis, Modern Law Review, Vol 77, 3, May 2014

[35] Para 11

[36] Para 67

[37] Para 68

[38] Para 3 to 5, dissent by Judge Tulkens and others

[39] UK Supreme Court Blog, 30 March 2012

[40] ObiterJ Blog, 16 March 2012

[41] Paras 8 to 10

[42] Para 17

[43] Para 213

[44] From the dissent of Judge Kalaydjieva

[45] Para 94

[46] Para 23

[47] Kanstantsin Dzehtsiarou,10 February 2015, ECHR Blog

[48] Steve Foster, Coventry Law School, Criminal Law and Justice Weekly, 27 June 2015

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s