Human rights round-up

Dr Helen O'Nions considers significant decisions on the bedroom tax, the detained fast track for asylum seekers, and the conduct of British military personnel overseas

Three cases pending a decision of the Grand Chamber of the European Court of Human Rights (ECtHR) will prove crucial to the human rights reform debate. The judgment in Hutchinson v UK (no. 57592/08) is eagerly awaited on whether the current provisions in section 30 of the Crime (Sentences) Act 1997, which allows for the early release of those sentenced to whole-life tariffs in exceptional circumstances, satisfies the requirements of article 3 of the European Convention on Human Rights (ECHR).

Judgment is also awaited in the 21/7 bombers’ case. In Ibrahim and others v UK (nos.50541/08, 50571/08, 50573/08, and 40351/09), the Grand Chamber has been asked to consider whether ‘safety interviews’ conducted under section 41 and schedule 8 of the Terrorism Act 2000 are consistent with the right to a fair trial in article 6 ECHR. '¨These are urgent interviews for the purposes of preventing danger to life or damage to property and do not require the suspect to have access to a solicitor or any legal advice.

The suspects denied all knowledge of the events during the safety interview. These statements were used as evidence in their subsequent trial when they presented contradictory explanations of their behaviour on the day in question. Three of the applicants were convicted of conspiracy to murder and sentenced to a minimum term of 40 years’ imprisonment. The fourth, initially interviewed '¨as a witness, was convicted of assisting one of the bombers and of failing to disclose information about the bombings. He was sentenced to ten years’ imprisonment, reduced to eight years on appeal.

Of the three cases, the judgment in Armani Da Silva v UK (no. 5878/08) is the most keenly awaited. The case was brought by the family of Jean Charles de Menezes, who have struggled to obtain answers since he was shot and killed by police firearms officers in London in 2005. The legal challenge centres on article 2 ECHR (the right to life) and the Crown Prosecution Service’s decision not to prosecute officers on the grounds there was no realistic prospect of a conviction. This conclusion protects homicide officers from prosecution if they can argue they had an honest, albeit mistaken, belief they were under imminent threat. 

Detained fast track

On the domestic front, the Human Rights Act continues to be a thorn in the side of the home secretary in her attempt to further restrict rights of appeal in immigration and asylum cases. '¨The detained fast track (DFT), in operation since 2003, is used to detain asylum seekers whose cases are assessed as being suitable for a quick determination. Decisions are often made on the basis of country of origin. The vast majority of DFT asylum applications are refused. The ECtHR ruled in Saadi v UK (no. 13229/03) that such detention could fall within the exception in article 5(1)(f) ECHR (i.e. to prevent unauthorised entry); there was no requirement for such detention to be absolutely necessary, providing it was exercised '¨in good faith and was broadly proportionate. 

In November, the Supreme Court refused the government leave to appeal following a Court '¨of Appeal ruling that operation of the DFT was inherently unfair. The ruling in The Lord Chancellor '¨v Detention Action [2015] EWCA Civ 840 focused on the timescale of seven days to prepare and present '¨a full appeal. In upholding the decision of Mr '¨Justice Nicol in the High Court, the Court of Appeal recognised the inherent complexity of asylum '¨cases. In his leading judgment, Lord Dyson reasoned that ‘justice and fairness should not be sacrificed '¨on the altar of speed and efficiency’, concluding '¨the fast-track system was both structurally unfair and unjust.

Armed forces

The conduct of British military personnel overseas was further scrutinised in the Court of Appeal decision in Mohammed and others v Ministry '¨of Defence [2015] EWCA Civ 843. It follows the Supreme Court decision in Smith v Ministry of Defence [2014] AC 52, which found that UK jurisdiction extended to securing the protection of members of the armed forces while they served outside its territory. While Smith itself could be distinguished on the facts from the ECtHR ruling in Al Skeini v UK (no. 55721/07), the approach of both courts recognises that the extra-territorial jurisdiction of the UK in situations of armed conflict overseas will be difficult to delimit where effective authority and control is maintained by the UK military.   

Mohammed was detained by UK forces in Afghanistan as a suspected Taliban commander for 206 days. The Ministry of Defence (MoD) argued that as the situation invoked lex specialis rules of international humanitarian law, these should trump the provisions on the right to liberty contained in article 5 ECHR. Authority for the extended detention in a situation characterised as non-international armed conflict was both Afghan law and UN Security Council Resolution 1890. However, the former only allowed detention for up to 72 hours and the latter up to 96 hours.

The UK contended extended detention could be lawful as there was implicit authority for further detention in these situations derived from the council resolution and from customary international principles. The court rejected the application of these international humanitarian standards in non-international armed conflict cases, ruling that detention beyond 96 hours was unlawful under article 5(3) and, further, that the absence of a meaningful periodic review violated article 5(4).

This decision may have contributed to the government’s announcement that it was looking into ways of preventing spurious legal claims against soldiers. Since the MoD was criticised for ‘corporate failure’ following the torture and death of Iraqi hotel worker Baha Musa in 2011, there has been concern over the number of embarrassing and expensive legal challenges. The Iraq Historic Allegations Team is currently investigating around 280 veterans for their part in unlawful killings between 2003 and 2009. Proposals being considered by the National Security Council include a residence test to prevent people who have not been in the UK for at least a year from claiming legal aid, along with ways of removing financial incentives given to law firms to pursue no win, no fee cases against military personnel. Any such measure is likely to be further challenged under articles 6 (fair trial) and 13 (effective remedy) ECHR, irrespective of the '¨fate of the Human Rights Act.

Anonymity order

Early 2016 saw the Supreme Court, and in particular Baroness Hale, attract considerable criticism from the tabloid press following the judgment in C v Secretary of State for Justice [2016] UKSC 2. '¨C, who suffered from a psychiatric disorder, had been convicted of a brutal double murder. He wished to challenge the home secretary’s refusal to grant a conditional discharge and requested an anonymity order for this purpose.

The case demanded careful balancing of C’s right to privacy found in article 8 ECHR against '¨the public interest in knowing C’s identity, as expressed in article 10. In the leading judgment, Baroness Hale acknowledged the principle of open justice as ‘one of the most precious in our law’. This, she reasoned, was reflected in the need for proceedings to be heard in open courtrooms, as well as in the importance of the public knowing the identity of litigants. In cases involving vulnerable litigants, such as children and those with mental health problems, the court had to consider the additional need to protect the litigant and those who might be affected by disclosure (such as those involved in caring for C’s health) from potential harm. Having weighed the competing interests, the court unanimously ruled in favour of C’s continued anonymity.

Bedroom tax

The right not to be subjected to discriminatory treatment, provided in article 14 ECHR, has typically been considered to be a weak provision in the convention in that it requires the victim to link the discriminatory treatment to the realisation of one '¨or more of the substantive convention rights. Consequently, there are few cases where article 14 is considered in depth by the Strasbourg court. Article 14 has been given a new lease of life, however, by the British courts in a series of challenges to the so-called bedroom tax. 

In Rutherford v Secretary of State for Work and Pensions and A v Secretary of State for Work and Pensions [2016] EWCA Civ 29, the applicants '¨were the grandparents of a severely disabled '¨child and the victim of serious domestic violence respectively. They challenged the new housing benefit rules, which did not take their circumstances into account when benefit payments were reduced following under-occupancy assessments. It was successfully argued that the discriminatory treatment (on the grounds of disability and sex) could not be objectively justified and was therefore contrary to article 14 and the public sector equality duty under the Equality Act 2010. The cases are due to be heard by the Supreme Court in May, while the earlier case of MA v Secretary of State for Work and Pensions [2014] EWCA Civ 13 will be heard in March.

Dr Helen O’Nions is a senior lecturer at Nottingham Law School @LawNLS www.ntu.ac.uk/nls