Tag Archives: European Convention on Human Rights

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 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 and exclude “trivial” ones) 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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Repeal of the Human Rights Act – and a British Bill of Rights

Note: details of a potential “overhaul” of the Human Rights Act, clause by clause, appear below for those who prefer to get straight to the nitty gritty: “Conservative Rights and Obligations – point by point”

The 2022 Queen’s Speech has underlined the intention of the  Secretary of State for Justice, Dominic Raab, to “reform” the UK Human Rights Act with a new British “Bill of Rights” (consultation document here). 

It is likely that Raab will craft what he calls a distinctly British version of human rights that swings the legal regime subtly in favour of the executive and public bodies, albeit without seeking to withdraw from the broad obligations of the European Convention of Human Rights.

But whether the changes will be acceptable to the European Court of Human Rights is a moot point. If not, Raab will relish the fight, and will point outthat the court already accepts a “margin of appreciation” for the exercise of human rights in individual countries ie the idea that they might be affected by the history and constitutional outlooks of individual nations and hence are not homogenous across all signatories. 

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Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.

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