Wednesday, 13 January 2010

Gillan & Quinton v. UK - ECtHR rules UK police stop and search powers violate Art 8

The European Court of Human Rights yesterday decided that the UK’s anti-terrorism legislation allowing police to stop and search individuals without reasonable suspicion of wrongdoing breached Article 8 of the ECHR.

Sections 44-47 of the Terrorism Act 2000 provide senior police officer’s with the power to issue an authorization, if s/he thinks it “expedient for the prevention of acts of terrorism” which allows uniformed police officers within a defined geographical area to stop anyone and search them. These provisions go beyond the normal stop and search powers under the Police and Criminal Evidence Act 1984 which require that the police officer has a “reasonable suspicion” that the individual possesses a “prohibited article” or is about to or has committed a crime. The authorizations under the 2000 Act are designed to be temporary lasting only 28 days and only within a limited area. However, the reality of the use of these provisions has seen the entire area of Greater London designated as suitable for searches and the authorization continuously renewed to the extent that the powers operated over a number of years. Thus the extraordinary power was normalized, something that was to have an impact upon the decision of the court.

The case of Gillan & Quinton v. UK was brought following stops and searches of the applicants at a demonstration against an arms fair in London in 2003. Gillan was a protester and Quinton a photo journalist. They challenged their treatment at the hands of the police through a judicial review which was dismissed in the domestic courts (R. v. Commissioner of Police for the Metropolis and another). The House of Lords decision had been criticized for taking a weak approach to judicial review, or even showing excess deference to the executive, in the area of anti-terrorism powers. The court was doubtful that an ordinary search carried out by the police would amount to a lack of respect for a person’s private life. And that even if Article 8 of the convention was relevant the procedure under the 2000 Act was “in accordance with the law” and that it would be “impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.”

A case was then brought to the European Court of Human Rights claiming violations of Articles 5 (right to liberty), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (right to free association).

The ECtHR found a violation of Article 8 and so did not go on to consider the other violations raised by the case. It did, however, indicate that it felt that there was a breach of Article 5. In particular it noted that although neither applicant had been held for longer than 30 minutes they were during that period “entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges.” The court noted that the elements of coercion were “indicative of a deprivation of liberty” within Article 5. This is in contrast to the House of Lords decision in which Lord Bingham concluded that the brief nature of stop and search and the lack of handcuffs/confinement meant there was no “deprivation of liberty”.

In relation to Article 8 the court found that stop and search powers were a clear interference with the privacy of the person.

The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment.

The court went on to conclude that the interference was not “in accordance with law” finding that the “wide discretion” provided by the legislation had not been limited by adequate legal safeguards to prevent abuse of the process. The court noted the statistical and other evidence that had been presented to it showing the extent of the police powers under the law.

The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8. In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under s.44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of s.44 abounded….

The court concluded that there were clear risks of discriminatory use of stop and search powers with the data showing a “disproportionate” impact on black and Asian persons. In relation to the case at hand the court also noted that risk that “widely framed” powers could be “misused against demonstrators and protesters in breach of Article 10 and/or 11 of the Convention”.

The decision of the court therefore recognizes the reality of the use of stop and search powers, both in relation to ethnic minorities and demonstrators. The evidence from the Carlile reports powerfully demonstrates the long argued position that allowing the police to stop and search on the basis of a hunch, and without “reasonable suspicion” will have a tendency to result in arbitrary and discriminatory use of those powers.

The judgment of the court therefore criticizes the whole process by which the stop and search powers under the 2000 Act were authorized by both police and the Home Secretary. The lack of control and the ability of the police to stop people based on instinct clearly raised serious concern about the arbitrary nature of the powers. Whilst the immediate response from the UK government was that their lawyers were reviewing the judgment it is interesting to note that the Metropolitan Police took a decision in 2009 to curtail the use of s44 powers.

The seriousness of the situation relating to the police use of stop and search in the UK was emphasized on the day of the courts judgment when the Guardian reported that Kent Police had admitted conducting illegal searches on 11 year old twins at an environmental demonstration. The admission came as part of a court case brought by protests against the policing of the demonstration at the Kingsnorth power station in 2008. The search had been part of a “checkpoint” system set up by the police which saw over 3500 protesters systematically stopped and searched.

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Monday, 7 December 2009

Rights-based approach to child law

In today's Irish Times Dr Ursula Kilkelly explores the increasing impact of international law on Ireland's family law. The sources of international law in this area not only include the seminal Convention on the Rights of the Child, but also law emerging from the Hague Convention on Private International Law and from Europe (Council of Europe and the European Union). As Dr Kilkelly notes
Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.
She goes on to highlight that the more recent significant development in this area is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. Importantly, the Charter requires that the best interest of the child is a primary consideration in all actions concerning children. It also expects that children’s views be taken into account in matters that concern them. It is clear that in this area the Charter reflects the approach of the CRC and is as a result likely to of major importance in Irish domestic law.
Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms.... Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.

Ultimately, whilst Dr Kilkelly notes that
[T]he complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.

She also concludes that there are many positive opportunities that will flow from these fast changing developments:
For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.

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Tuesday, 1 December 2009

Using the CRC to protect the child’s rights in youth crime in England and Wales

This blog post was contributed by Dr Kathryn Hollingsworth, Senior Lecturer in Public Law at King's College London

The UN Convention on the Rights of the Child is not domestically enforceable in England and Wales, but its profile – and the profile of children’s rights generally - has been raised in recent years thanks to the campaigning efforts of NGOs such as the Children’s Rights Alliance for England, the Howard League for Penal Reform, and UNICEF. On 19th November 2009 a private member’s bill, The Children’s Rights Bill 2009, had its first reading in the House of Lords. The Bill, if passed, will have the effect of incorporating the UN Convention on the Rights of the Child into UK domestic law, using procedures which mirror those set out in the Human Rights Act 1998 by which the European Convention on Human Rights was ‘brought home’ to the UK.

The chances of the Children’s Rights Bill making its way onto the statute book are slim. But that does not mean that the CRC has no place in English law. In the last five years, the judiciary in England and Wales have increasingly drawn on the CRC in order to interpret the rights of children in domestic law. Lady (previously Baroness) Hale and Lord Justice Munby have been particularly instrumental in this regard. This has had an important and positive impact on the protection of children’s rights, especially in the youth crime context.

The leading decision is R (on the application of R) v Durham Constabulary [2005] UKHL 51, where Baroness Hale made it clear that the CRC must be used to interpret the meaning of the child’s enforceable rights under the ECHR. The case concerned the system of diversion in England and Wales and specifically the question of whether the absence of a requirement for a child to consent to a reprimand or warning constituted a breach of the child’s Article 6 ECHR right. Baroness Hale drew on Article 40(3)(b) and 40(4) CRC, as well as the Beijing Rules and the Riyadh Guidelines, and expressed her ‘grave doubts’ as to whether the system of diversion in England and Wales complied with the CRC (because of its rigidity and because it propels the child more quickly through the criminal justice system). Crucially, however, Baroness Hale pointed out that the lack of a requirement to gain the child’s consent before being issued with a final warning did not breach the child’s enforceable rights under the ECHR.

Despite the unfavourable outcome for the child in this case, Baroness Hale’s dicta is permeating through into other cases. One area of youth crime where the child’s CRC rights are of particular importance is where the child is detained in a custodial institution. Here the CRC can be used to emphasise the child’s status as child – the need to care for the child as a child rather than as a ‘prisoner’. Article 3 CRC can be especially useful here. For example, Mr Justice Munby (as he was then) drew on the CRC in his landmark judgment in R (on the application of Howard League) v Secretary of State for the Home Department [2002] EWHC 2497. In particular, the child-specific obligations such as Article 3 CRC imposed ‘on the Prison Service positive obligations to take reasonable and appropriate measures’ designed to ensure that children in YOIs are treated with humanity and with respect for their dignity, and that they are not subjected to torture or inhuman or degrading treatment. In particular, when balancing the interests of the child against the wider interests of the community and other inmates, Mr Justice Munby argued that regard should be had to the inherent vulnerability of children in a YOI, and also to the principle that the best interests of the child should be a primary consideration. This approach was followed very recently by the Court of Appeal in R (C) v Secretary of State for Justice [2008] UKCA Civ 882, a judicial review case brought to challenge the regulations which allowed restraint to be used in Secure Training Centres for the purposes of good behaviour and discipline. In this case, the application was successful and the regulations were quashed for breaching Articles 3 and 8 ECHR, both of which were interpreted by taking account of the CRC.

These are just a handful of cases where the CRC has been used successfully to protect the child’s rights in the prison context. But, the Convention has certainly not proved to be a panacea. Even where it is used by the judiciary as an interpretative tool, it can only extend as far as the child’s rights in domestic law or under the ECHR allow. For example, in R (on the application of DT) v Secretary of State for the Home Department [2004] EWHC 13 a girl was being moved from a Local Authority Secure Children’s Home into an adult female prison because of shortage of space. The judge held that an apparent breach of Article 37(c) CRC was irrelevant here (not least because the UK had derogated from that provision but nonetheless it is not directly enforceable) but that the girls’ article 8 ECHR rights were engaged, and the content of these rights could be interpreted in light of the CRC – though only Article 3 because of the derogation from Article 37(c). Although the judge agreed that her Article 8(1) rights were engaged when she was transferred to an adult prison, the restriction was deemed justifiable under Article 8(2) ECHR. More recently in R (on the application of London Secure Services) v Youth Justice Board [2009] EWHC 2347, a JR challenge was brought against the Youth Justice Board for its decision not to re-commission 28 beds in local authority secure homes (the preferred type of institution from a children’s rights perspective for children detained in the secure estate). The challenge was not successful despite Mr Justice Forbes claiming to take into account the child’s rights under the CRC in determining the content of the relevant ECHR rights.

There appears to be only so much the judiciary can do to protect the child’s CRC rights in youth crime. But, although limited, the willingness of the judiciary to draw on the CRC to interpret the meaning of a child’s rights is particularly crucial given the Conservative Party’s pledge to repeal the Human Rights Acta if they are elected in 2010. If this happens, the rights under the ECHR will no longer be domestically enforceable and the judgements of the European Court of Human Rights will presumably decline in relevance to rights protection in England and Wales. This could have serious implications for children in trouble with the law for three reasons: firstly because the Tory’s motivation for replacing the HRA in part comes from the fears that the Human Rights Act is a ‘criminal’s charter’ – it may be the rights of ‘criminals’ which are thus most restricted in any new bill. Secondly, the ECHR has been an invaluable tool in protecting the rights of children detained in custodial institutions. And thirdly, the justification Lady Hale gave for interpreting the child’s ECHR rights in light of the CRC in the Durham Constabulary case was that this is the approach taken by the European Court of Human Rights.

It is crucial that the CRC is seen as an over-arching and consistent presence that is founded in the UK’s ratification of the Treaty and not in the decisions of the European Court of Human Rights. If so, the English judiciary can continue to interpret a child’s rights in light of the CRC, regardless of the source of those rights – whether it be the ECHR or a domestic bill of rights. Clearly, the reach of such an approach will depend on the particular bill of rights in force but at the least it should help to ensure that the progress made in the interpretation and enforcement of the child’s rights in area of youth crime in the last 5 years is not lost, even if the Human Rights Act is.

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Thursday, 17 April 2008

High Court suggests Article 8 Protections for Same-Sex Families

The High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have ‘favoured uncle’ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8, ECHR. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.

The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released shortly), but also because Justice Hedigan’s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the ECtHR’s own jurisprudence on whether same-sex couples with or without children can be regarded as ‘family’ under Article 8.

The Strasbourg court has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria (2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the Commission it was held that the relationship between two women and the child of one of them did not constitute family life. In this case, Kerkhoven & Hinkle v Netherlands (1992) the Commission noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.

Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom (1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a “biological man” could be so registered. This application claimed that this decision was a breach of the unit’s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under ‘father’). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to X’s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.

These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe – nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and ‘gay parenting’ is much increased. In addition, the European Court of Justice (EU) has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners
“live in a union of mutual support and assistance which is formally constituted for life” (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of ‘consensus’ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.

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Wednesday, 9 April 2008

(UK) Court of Appeal applies Saadi v Italy and Prevents Deportation to Libya

Today the Court of Appeal (Civil Division) released its judgment in AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289, which concerned the lawfulness of the deportation of the applicant to Libya, pursuant to a Memorandum of Understanding with the proposed receiving state.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdom’s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Right’s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:


Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment ... in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)


The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UK’s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which – taking into account the unpredictability of the future – it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:


  1. The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
  2. In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is “a real risk of ill-treatment”, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
  3. A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.

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Tuesday, 4 March 2008

Saadi v Italy - The ECtHR Reaffirms Article 3's Absolute Protection

Article 3 of the ECHR, which prohibits torture, inhuman or degrading treatment or punishment, imposes positive obligations on states, including the obligation of non-refoulement (i.e. the obligation not to return and individual to a country where that individual is likely to be subjected to treatment that violates Article 3). This obligation has been clearly outlined and enforced by the European Court of Human Rights since Soering v United Kingdom and Chahal v United Kingdom. Since the commencement of the ‘War against Terrorism’, however, some governments have argued that they ought to be entitled to deport suspected terrorists, even to countries where they may be at risk of Article 3 treatment, provided they have acquired diplomatic assurances that the individual will be protected from such treatment.

These claims have been extremely controversial, particularly since diplomatic assurances are not legally binding; there is no recourse for the individual against the state that has given the assurance in the event of its breach (unless some kind of legitimate expectation claim could be successfully constructed, which seems somewhat unlikely) – as diplomatic tools they are enforced (or not) through diplomatic channels. However, diplomatic assurances are not always insufficient to meet the receiving state’s obligations: if the assurance covers the prohibited activities, relates to a situation over which the assuring state has control, and comes from a reliable source then arguably the receiving state can rely on it. (For more on this see, e.g., this piece originally published in the Irish Law Times). One of the primary questions to arise since 2001, however, is whether the suspected involvement of the individual concerned in terrorist activity in any way reduces a state’s positive obligations under Article 3.

This question was directly addressed by the European Court of Human Rights in last week’s judgment in Saadi v Italy (judgment here). The case concerned a Tunisian citizen whom Italy wished to return to Tunisia but who claimed that he was likely to be subjected to behaviour violating Article 3 on his return and therefore that Italy had an obligation of non-refoulement towards him. The Italian government had received an assurance from Tunisia that Tunisian law guaranteed a fair trial and prisoners rights and that Saadi would be treated in strict conformity with these national laws. Pursuant to that assurance Italy claimed compliance with its Article 3 obligations; Saadi claimed that the assurance did not satisfy Article 3.

Although the Court accepted the grave difficulties that contemporary terrorism poses to states, it rejected the argument offered by the United Kingdom, which was a third party intervener to the proceeding, that in relation to suspected terrorists the court ought to weigh the community interest against the risk of violatory conduct perpetrated by a third party state (in this case, Tunisia). According to the Court, at paragraph 138:


Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 130 above). It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.

And at paragraph 140:


With regard to the second branch of the United Kingdom Government's arguments, to the effect that where an applicant presents a threat to national security, stronger evidence must be adduced to prove that there is a risk of ill-treatment (see paragraph 122 above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been sown for believing that there is a real risk that the person concerned will be subjected i the receiving country to treatment prohibited by Article 3.


The Court accepted that diplomatic assurances might be sufficient in some cases to satisfy a state’s Article 3 obligations, but this was not the case here given the strong evidence of widespread torture and ill-treatment in Tunisian detention facilities. Thus Saadi could not be deported; any deportation would violate Article 3.

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Monday, 3 December 2007

ECtHR Decides N.I. Collusion Cases

On November 27th the European Court of Human Rights found violations of Article 2 of the ECHR (right to life) on the part of the United Kingdom in the cases of McGrath v United Kingdom, McCartney v United Kingdom and Brecknell v United Kingdom. The leading judgment is that handed down in Brecknell.

Brecknell concerned the attack on Donnelly’s Bar in 1975 in which three people were killed and six seriously injured. There had been some initial investigation but the investigation was reignited in 1993 when John Weir was released from prison.

John Weir was a police officer who was convicted of murder in 1980 and released in 1993. On his release Weir alleged RUC (Royal Ulster Constabulary) collusion with loyalist paramilitaries, and provided information relating to a number of incidents including the attack on Donnelly’s Bar. This information was investigated by both the Irish police and the Royal Ulster Constabulary (RUC) and, in connection with the RUC investigation, two internal reports were prepared (one in 2001 and one in 2003). In 2004 a Serious Crime Review Team investigation into the Weir allegations began (the PSNI now having replaced the RUC) and the Independent Police Ombudsman for Northern Ireland became involved.

The families of the deceased persons claimed that the investigation had been inadequate and engaged in judicial review at the domestic level that was, ultimately, unsuccessful. Before the European Court of Human Rights the applicants claimed that the investigation into Weir’s allegations had been inadequate particularly since the Irish police had found him to be a credible witness but, on the same evidence, the PSNI had found him to be not credible. According to the complaint Article 2 results in a positive obligation to conduct an independent investigation into Weir’s allegations whereas the Government argued that, even if the allegations did trigger an obligation to investigate (which was denied), the investigation conducted was in compliance with Article 2.

In its judgment the ECtHR reiterated its well-established principle that there is an Article 2 obligation to carry out an effective investigation into unlawful or suspicious deaths and that this investigation ought to be prompt, independent and effective. It is not the case, according to the Court, that every new allegation or piece of information would trigger this positive obligation but “where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures” (para. 71). In this case Weir’s allegations were serious and were prima facie plausible, therefore an obligation to investigate arose.

The initial investigation, which was carried out by the RUC itself, was found by the ECtHR not to be sufficiently independent and therefore failed to comply with Article 2 at the early stages at least. As a result, there was a violation of Article 2. it does appear, however, that the later stages of the investigation operated by a SCRT and involving the Ombudsman would satisfy the requirements of Article 2, thus highlighting (once more) the fundamentality of the change in policing in Northern Ireland from the RUC to the PSNI further to the Patten plan.

The same conclusion was reached on similar facts and in relation to further allegations by John Weir in both McGrath and McCartney.


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Thursday, 15 November 2007

ECtHR Decision on Roma Education Rights in Czech Republic

The European Court of Human Rights last Tuesday handed down its judgment in DH & Others v Czech Republic concerning the segregated education of Roma children in the Czech Republic. The Court found that the education offered to the Roma children was substandard and was “not attended by safeguards [citations omitted] that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class”. The segregation of the Roma children and their provision with lower quality education constituted a discriminatory violation of their right to education (Article 14 & Article 2, Protocol One) and the respondent state was ordered to pay 4,000 Euro to each child. Interestingly, the judgment makes extensive reference to EC law, international human rights law, non-binding reports and opinions on Roma education in the respondent state, as well as the Court’s own jurisprudence.

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Tuesday, 23 October 2007

The Foy Case

On Friday, October 19th the High Court declared its intention to issue the first ever Declaration of Incompatibility in Irish law. These declarations are allowed for by s. 5 of the European Convention on Human Rights Act 2003 and are to be issued if Irish law is found to be incompatible with the European Convention on Human Rights. The Declaration is to be handed down in the case of Lydia Foy – a dentist who was born male and, prior to transitioning to female, married and had a number of children. She later transitioned including having irreversible surgery partly funded by the state and sought to have her birth certificate altered to identify her as female because of the considerable humiliation and trauma caused when she was required to prove her identity by means of a birth certificate on which she was still identified as male.

In the original action her claim was unsuccessful, however the European Court of Human Rights handed down the Goodwin v United Kingdom decision only two days later and, as a result, the High Court was to rehear the case taking the ECHR into account (as the 2003 Act requires). On this basis the High Court last Friday found that although Irish law was not unconstitutional and although Lydia Foy was not entitled to an altered birth certificate under Irish law, this position was clearly incompatible with the Convention and therefore a Declaration of Incompatibility would be appropriate. The Court gave counsel three weeks to consider the judgment (which does not yet appear to be online) and once the Declaration is issued the Dáil (lower house of parliament) will be required to consider it within 21 days.

This case and the repercussions of the Declaration of Incompatibility are exceptionally important developments in Irish law. First of all, from the perspective of those interested in the real impact that the Convention will have now that it has been incorporated (Ireland is a dualist state under Article 29 of the Constitution) it affords the opportunity to see whether the legislature will in fact respond to the political imperative to legislate for the recognition of the realigned gender of transpersons – it has no domestic legal obligation to do so. From a gender perspective the decision is also important. Irish law has traditionally been strongly gender-structured emanating from a gendered Constitution that includes a provision in Article 41.2 to the effect that “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved”. Legislating positively in the context of transpersons may well introduce a much needed realignment of gender notions in Irish law – or at least force a (hopefully informed and balanced) debate on the law’s reliance on gender as a classification and the complexities of gender that simple ‘assignment at birth’ policies tend to obscure.

Later this week Tanya ní Mhuirthile, a PhD candidate at the CCJHR whose research focuses on the legal implications of intersexuality, will guest blog a post on Foy and on the implications of this case for Irish law and policy on gender identity.

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