Tag Archives: ECHR

Young boy’s ‘sexual experimentation’ that led to lifetime criminal record

The case of a 12-year-old boy’s “sexual experimentation” with male friends in a garden shed more than 10 years ago has joined a series of legal challenges to UK policy on maintenance and disclosure of records of “spent” convictions and police cautions. 

The boy, G, and his mother had been told  in 2006 the record of his “reprimand” (a minor caution for juveniles; see S.65 Crime and Disorder Act 1998) for two counts of sexual assault would be wiped out when he was 18. But when in 2011 he applied for a job in an employment agency at the library of a local college he was shocked to find that the police reprimand appeared on records at the Criminal Records Bureau. He withdrew his application to avoid the reprimand being revealed.

In 2006 Association of Chief Police Officers (ACPO) policy on keeping records had changed from weeding them out after five years if there was no subsequent offending to retention for 10 years. After 2009 it became police policy to retain caution and conviction information until the subject reaches 100 years of age.

G and his mother had been misinformed about the five year period and now he had been caught by the “aged 100 rule”. An appeal by G to the Chief Constable of Surrey for the record to be expunged was rejected.  Continue reading

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Filed under Analysis, Criminal law, ECHR, European Convention on Human Rights, Human rights, Law, Legal, Politics, Social welfare, UK Law

Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.
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Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure

An inquest is to be held (on 10 December 2014 in Maidstone, Kent) into the death of Daniel Gauntlett who died in freezing temperatures outside a derelict bungalow in Kent. The death brought the notorious LASPO anti-squatting legislation into focus. An issue likely to be considered at the inquest is whether Gauntlett’s human rights were breached: did the state owe him a duty regarding his European Convention Article 2 right to life?

Campaigners have blamed his death on the LASPO legislation last year that banned squatting in residential buildings. They say he was barred from entering the building to protect himself from sub-zero temperatures last February [2013]. The inquest opens up the prospect of examining whether the legislation or the authorities acting under it bear any responsibility for Gauntlett’s death.

For that the inquest will have to be held under a “Middleton procedure”. Where public authorities might have been involved in a death, the procedure allows the coroner to examine whether the deceased’s right to life under Article 2 has been breached. As well as a standard finding on cause of death (by what means someone died) the coroner may in effect indicate where blame might lie by considering the circumstances of the death.

Campaigners want the coroner to look at how far Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 might have been responsible for Gauntlett’s death outside the bungalow in Aylesford, near Maidstone. At issue might also be the behaviour of police or social services.
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Magna Carta – is it such a great charter?

The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.

   In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.

   The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?

   In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.

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Conservative Bill of Rights: the State v the People

Does Britain need a new Bill of Rights? This is a question that very quickly becomes a different question: “Should the state impose wider obligations on its citizens – broader than those set out in general law?”

The answer to these questions, according to Conservative voices pressing for a “United Kingdom Bill of Rights and Responsibilities” is “Yes” – but only as long as the second question is answered “Yes” first. Rights, it is said, must be balanced by obligations to the extent that, arguably, they cease to be “rights” at all. Instead they become citizenship privileges, accessible only to those who meet certain criteria of moral goodness.

The Conservative Party is shortly to publish its UK Bill of Rights, a new constitutional “settlement” that it is said will “detoxify” the human rights issue. [NB: as of early 2016 this hasn’t happened yet]

It is therefore worth looking at an earlier attempt to create a Conservative Bill of Rights – the private member’s Bill promoted by lawyer Charlie Elphicke in 2012. Human Rights Act 1998 (Repeal and Substitution) Bill – publications pdf

This could be the basis of the new official Tory version (Elphicke is on the committee working on the document) – and it is rather revealing. Not only does it seek to dismiss the influence of the European Court of Human Rights in British courts, it creates a utopian vision of a Conservative society in which the people are required to measure up to standards set by the State and the State can, in certain circumstances, avoid human rights obligations to the people. Those rights become contingent rather than absolute.

This new concept of a Bill of Rights is far from the original 1689 version – a set of rights and protections that the people had against the Executive (ie the Government or at that time the Monarch). But it illustrates the problem with many such attempts to write down the constitutional underpinnings of any state – that they say a lot about current political obsessions rather than take an objective view of the likely developing needs of a particular nation.

The intention of the Conservative version, based on what we know of Elphicke’s, is to select a series of items that constitute “British values” – values that will be resistent to the claims of “human rights” made by individuals against the State and its offshoots. We return to this issue below (see “Moral obligations”) but first must look at the Elphicke view of the rule of law.

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Hoffmann, Laws and Sumption: they come to bury the ECHR, not to praise it

Note: for those interested in the “gays in the military” case search “Smith v UK” below

Three giants of law have entered the somewhat confected debate on the Britain’s relationship with the European Convention on Human Rights and the Strasbourg human rights court. Former House of Lords judge Lord Hoffmann, current UK Supreme Court justice Lord Sumption and Court of Appeal judge Lord Justice Laws have given significant intellectual underpinning to the simplistic arguments of the Conservative Party sceptics who claim to see a democratic deficit between government policies and Strasbourg judgments. The first out of the traps was Lord Hoffmann, giving the Alba seminar in October.

Lord Hoffmann
In his section of the seminar Hoffmann declared himself wholly happy with the majority view in Liversidge v Anderson AC 206 (1942).

No news there, one might think – retired judge backs even more ancient judges in 70-year-old court case. But history’s view has hitherto been different. The case hinged on an emergency wartime order used by Home Secretary Sir John Anderson to imprison Robert Liversidge (aka Jack Perlzweig) without trial and without apparent reason except to say he had “hostile associations”. Liversidge had sued for false imprisonment.

The order, Regulation 18(b) of the Defence Regulations 1939, said: “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … he may make an order against that person directing that he be detained.”

The issue therefore was what is meant by “reasonable cause” – and in particular, can the court decide on reasonableness or should it simply defer to the judgment of the Home Secretary – a man in place as a result of a constitutional democratic process and there to protect us all?

Four of the five Law Lords preferred judicial deference – if the Home Secretary said there were “reasonable grounds” then that should be accepted. This is Hoffmann’s position, but lawyers and scholars have generally been more interested in Lord Atkin’s minority view: that Parliament meant there to be plausible evidence for detention; if there was not, and such evidence was not presented to the court, then the judges should declare the detention unlawful. The majority decision was, on this view, unconstitutional because it substituted the judges’ view – and indeed the Government’s view – for the will of Parliament.

Hoffmann does not seem to understand this. He takes a purposive view of the legislation and so believes the judges were right to “correct” it. Since the purpose of the statute was to protect the country from Nazi spies and the like, then the powers should be whatever was required to do that. In particular, whatever the Government (not Parliament) thought was required. The “reasonable cause” qualification could be interpreted subjectively to mean “if the Home Secretary felt he had reasonable cause”. Defence of the realm trumped constitutional niceties regarding the supremacy of Parliament.

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