Whole Life Orders for murder

In 2012, the Home Secretary (Theresa May) was heckled at the Police Federation Conference in Bournemouth because of her stance on Police Pay and Conditions.  This year she returned to the lion's den with a message that, subject to consultation with the sentencing council, the sentencing starting point for those who murder a police officer will be a whole life term (without parole) and that the law would be altered to that end - The Independent 15th May.  Against a background of the murders of two Police Officers at Hattersley (Greater Manchester) in 2012, this will have been a welcome message to many.

The present sentencing framework:

The sentencing basis is now to be found in the Criminal Justice Act 2003 Schedule 21.  Under s269 of the Act, the Lord Chancellor may by Order amend Schedule 21 following consultation with the Sentencing Council.  Under section 330(5), the Lord Chancellor's Order must be approved by resolution of each House of Parliament.

The power to amend Schedule 21 has been used previously - see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term ) Order 2010.

The clear aim of the Schedule, as presently drafted, is
to reserve a whole life starting point for cases which are of exceptional seriousness.  For offenders aged 21 or over (at time of offence), the starting point is a a whole life order where the court considers that the seriousness of the offence is exceptionally high.  The Schedule then lists some types of case which normally fit that category:.

(a) the murder of two or more persons, where each murder involves any of the following -

(i)  a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(d) a murder by an offender previously convicted of murder.

The Schedule goes on to provide that, for an offender aged 18 or over (at time of offence), the starting point will be 30 years where the court considers that the seriousness of the offence is particularly high.  Again, some types of case which would normally fit this category are listed and these include  (a) the murder of a police officer or prison officer in the course of his duty.

Once the starting point is decided, the judge will then apply any aggravating and mitigating factors (see the lists in the Schedule) to the extent that they have not already been allowed for in choosing the starting point.  Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.

It is important to note that, as presently drafted, Schedule 21 is not a rigid 'tick box' system.   As the
Crown Prosecution Service indicates (Mandatory Life sentences in murder cases), the judge retains discretion to determine the minimum term - (see R v Sullivan and others [2004] EWCA Crim. 1762 at paragraph 11). However, the court must state its reasons for departing from the guidance.

Whilst the present framework gives a 30 year starting point for the murder of a police officer (in the course of his duty), judicial discretion has been retained and where there are aggravating features the actual term set could be longer.  If there are mitigating features then the term could be shorter.  The retention of judicial discretion in any change to the law will be essential if serious injustice is to be avoided.  Theresa May's announcement referred to a whole life starting point and so it appears that judicial discretion will remain to lower the minimum term if appropriate.

It is interesting to note that Schedule 21 - as now written - refers to prison officers as well as police officers.  It is not clear whether Theresa May's thinking extends to raising the starting point for persons other than police officers.

Challenge to 'Whole Life Orders' under the existing framework:

In January 2012, the Fourth Section of the European Court of Human Rights gave judgment in
Vinter and Others v. the United Kingdom - (Judgment of 4th Section). The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are currently serving mandatory sentences of life imprisonment for murder.  When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds.  They argued that their whole life orders amounted to a breach by the UK of the prohibition of inhuman or degrading treatment (Art 3).  They also relied on Article 5(4) (right to have lawfulness of detention decided speedily by a court), Article 6 (right to a fair hearing), and Article 7 (no punishment without law).  The E Ct HR held unanimously that Art 3 was not violated.

In November 2012, the Vinter case was heard by the Grand Chamber of the E Ct HR - Whole Life Terms for Murder - Vinter and others v UK (28th November 2012).  A key point in the argument for the applicants was that when a 'whole life term' is set there is no review mechanism and that, as a result, Article 3 of the E Conv HR is breached.  The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3.  This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).

Judgment in the Vinter case has yet to be handed down by the Grand Chamber.

Other links:

List of Police Officers killed in the line of duty since 1900

Odegbune and others v R - Court of Appeal 15th May 2013
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At Westminster, Henry VIII is alive and kicking !

Today it is reported that the 'Eurozone' continues to be in recession - (The Guardian 15th May).  Yesterday, a DRAFT European Union (Referendum) Bill  was published on behalf of the Conservative Party - BBC 14th May.

The Bill provides for a referendum on EU membership to be held on any date up to 31st December 2017.  The referendum would be triggered by an Order made by the Secretary of State though there is a requirement for the Order to be 'laid before, and approved by a resolution of, each House of Parliament.'

Clause 3(3) enables the Order to modify or amend 'this Act or another enactment.'  Henry VIII is alive and kicking - (see views of Lord Judge CJ - Henry VIII clauses).  Clause 3 reads:

Conduct of the referendum and further provisions


(1) The Secretary of State shall by order provide for the rules in accordance with which the referendum is to be conducted. 
(2) The Secretary of State may by order make further provisions about the referendum.
(3) An order under this section may make provision modifying or amending this Act or another enactment. 
(4) An order under this section may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

The Bill has been introduced at this time for party political reasons with 'Eurosceptic' MPs worried about the success of the UK Independence Party (UKIP) in the recent local government elections.  The Eurosceptics are annoyed that a referendum Bill was not included in the recent Queen's Speech.  For more of the political detail see, for example, The Guardian and for details of Britain's financial contribution to the EU - see Budget Information. 

The draft legislation has been published by the Conservatives so that it can be brought to the Commons for debate by one of the party's backbench MPs in the form of a private member's bill, rather than one sponsored by the government.

It will be interesting to watch the political shenanigans over this matter.  Of course, even if the Bill eventually becomes law, it will not bind the next Parliament since it is a basic principle in Constitutional Law that 'Parliament may not bind its successors' - see Public Law for Everyone

Addendum 16th May:

The Guardian - Cameron snubbed by 114 Tory MPs over absence of EU poll in Queen's Speech 

BBC - EU Referendum: Tory MP will take forward bill
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Domestic Law and the European Convention on Human Rights - Part 3

In this short series of posts I have so far looked at the list, produced by Parliament, of Human Rights cases since 1975  (post here + list here) and at the vitally important Article 2 (Right to Life) of the European Convention on Human Rights.  The impact of the European Convention on Human Rights (E Conv HR) on our domestic law has been considerable.  This post looks at another area where there has been significant impact.

A major impact has been to require States to protect the  Convention Rights of ALL individuals and not just powerful majorities.  Article 1 states clearly:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention

There are no categories of individuals who are to be denied Convention rights no matter who they are or what they have done or may have done.

The illustrative case of Bellinger v Bellinger [2003] UKHL 21 was concerned with the rights of transsexuals.  In an 'over-simplified and question-begging form' the issue was whether a person could change the sex with which he or she was born?  More specifically, was Mrs Elizabeth Bellinger, validly married to Mr Michael Bellinger since, of course, marriage was confined to persons of opposite sex.

The leading speech was that of Lord Nicholls of Birkenhead which is a masterful analysis of the development of the law relating to transsexualism and marriage.  His Lordship noted
that the issue had been before the European Court of Human Rights (E Ct HR) on several occasions - Rees v United Kingdom (1986) 9 EHRR 56, Cossey v United Kingdom (1990) 13 EHRR 622, and Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163 - culminating in Goodwin v United Kingdom (2002) 35 EHRR 18.  It was in Goodwin where the E Ct HR finally took the view that the UK's 'margin of appreciation' could no longer extend to refusing to give legal recognition to gender reassignment and, in Goodwin, the UK was held to be in breach of Articles 8 (Respect for Private and Family Life) and 12 (Right to marry).

In December 2002, the British government announced an intention to bring forward legislation to allow transsexual people who can demonstrate they have taken decisive steps towards living fully and permanently in the acquired gender to marry in that gender. There was also recognition by the British government that domestic law was incompatible with articles 8 and 12 of the Convention.

The eventual outcome was the Gender Recognition Act 2004.  The Bellinger case also demonstrates the importance of looking at the European Convention as a 'living instrument' rather than as a document locked into the attitudes or mores of the post-war world of the 1950s.   The 'living instrument' viewpoint, which is not favoured by some politicians, may be traced back to Tyrer v UK 1978 (Concerning corporal punishment in the Isle of Man).  Even if it is arguable that a change to our domestic law would have eventually come, the living instrument viewpoint spurred on this important change.  (For more on this approach see the article  here).

The Bellinger case is also an important authority as to when the courts will make a 'declaration of incompatibility' in relation to an Act of Parliament.  Such declarations are possible under the Human Rights Act 1998 s.4 (HRA) but they do NOT instantly alter the law.  Change must be made by Parliament and the HRA provides a 'fast track' method for doing that.   

Lord Nicholls said (paras. 53 to 55) that non-recognition of gender reassignment was not compatible with the articles 8 and 12.  In Goodwin, the European Court of HR had held that to be so.  His Lordship was not persuaded by argument that making the declaration of incompatibility would serve no useful purpose.  At para 55 he said:

'If a provision of primary legislation is shown to be incompatible with a Convention right the court, in the exercise of its discretion, may make a declaration of incompatibility under section 4 of the Human Rights Act 1998.  In exercising this discretion the court will have regard to all the circumstances.  In the present case the government has not sought to question the decision of the European Court of Human Rights in Goodwin.  Indeed, it is committed to giving effect to that decision.  Nevertheless, when proceedings are already before the House, it is desirable that in a case of such sensitivity this House, as the court of final appeal in this country, should formally record that the present state of statute law is incompatible with the Convention.  I would therefore make a declaration of incompatibility as sought ....' 

In 2004, in a separate development, Parliament also enacted the Civil Partnership Act  permitting civil partnerships between same sex couples. Article 12 of the E Conv HR refers to 'men and women' having the right to marry eachother and in Rees v UK (1987) 9 EHRR 56, the E Ct HR said that the right to marry refers to the traditional marriage between persons of opposite biological sex.  It followed that there was no obligation on States to recognise in law marriages or civil partnerships between homosexuals - see Wilkinson v Kitzinger [2006] EWHC 2022 paras  44-48.

To similar effect is Schalk and Kopf v Austria 2010. though here the court was cautious to note the contemporary nature of its judgment in relation to Article 12 but held that, as matters stand, the question of whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.'   On this, see the interesting discussion by barrister Andrew Commins in Family Law Week.

The Civil Partnerships Act was clear recognition by Parliament of a development across Europe to recognise in law the commitment made to each other by persons of the opposite sex.  Furthermore, the Marriage (Same Sex Couples) Bill is now making its way through Parliament - discussed in the post of 5th February 2013.
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Questions of human mortality


The BBC 13th May Right to Die cases at Court of Appeal
reports that the Court of Appeal is about to hear the cases of Mr Paul Lamb and a man referred to only as Martin. 

According to the BBC report, Paul Lamb, from Leeds, was paralysed from the neck down in a car accident and wants a doctor to help him to die.  The 58-year-old, who has effectively taken up the case begun by the late Tony Nicklinson, is seeking a ruling that would give doctors a defence to a murder charge.

Mr Lamb argues that a doctor who killed him would have a defence of 'necessity' to a criminal charge because it was 'necessary' for the doctor to stop intolerable suffering.  Mr Lamb is therefore seeking a declaration from the court that such a defence might be available.

The other man, known only as Martin, is seeking a change to the prosecution of assisted suicide.

In August last year, the High Court turned down challenges to the law in England and Wales, saying it was for Parliament to make such decisions - Judgment and post of 6th September 2012.

A "necessity" to
break the criminal law may arise in a number of situations - e.g. A resists an attack by B and injures B (self-defence); D commits a burglary because of threats of serious physical harm from E (duress); F drives his car into a shopping precinct in order to escape from people he believes are about to attack him (R v Willer 1986 - duress of circumstances); a surgeon operates to separate "conjoined twins" in the knowledge that one of them must die as a result but the other may well be saved - A (Children)(Conjoined Twins: Medical Treatment)(No.1) 2000.

The judges have always been anxious to keep such a defence within strict limits.  In London Borough of Southwark v Williams 1971 Lord Denning said - "Necessity would open a door which no man could shut ... The plea would be an excuse for all sorts of wrongdoing.  So the courts must, for the sake of law and order, take a firm stand."    Even today Lord Denning's observation stands as a cautionary note to judges minded to extend the law.  At the heart of necessity is the idea that the individual was compelled to act in order to avoid some very serious consequence.  The problem is defining the boundaries with a sufficient degree of precision.  It is for this reason that there is good reason for judges to tread carefully in an area where, up to now, Parliament has feared to tread.

Some writers treat necessity as a distinct defence from other defences such as duress.  Nevertheless, the term necessity appears to be a "genus" embracing other situations ("species") in which, for a reason recognised as valid by the law, the defendant acted in a way which would involve what would normally be a breach of the law.

In relation to murder, the House of Lords ruled in R v Howe [1987] 1 AC 417 that duress was not a defence whether as a principal or secondary party.  A view has been expressed (Michael Allen 'Criminal Law') that their Lordships reasons for this 'verge on  the fatuous.'  Duress is not a defence to a charge of attempted murder either: R v Gotts [1992] 2 WLR 284.  If duress is a species of the genus 'necessity' then the Howe and Gotts decisions (which bind the Court of Appeal) might well present a considerable obstacle to those seeking to argue that necessity might provide a defence to a doctor.

Some previous posts touching on necessity as a defence are:




This latter post considered an extra-judicial speech by Lord Walker (Justice of the Supreme Court of the UK) which looked at a number of situations where the judges have developed the law and some where they have not.  His speech is well worth reading in full - "Developing the common law: how far is too far?" - 4th September 2012.

One of the points made by Lord Walker was that "in the field of human mortality, Parliament has shown a marked reluctance either to clarify or change the law."  For example, there were various Bills introduced by Lord Joffe in 2003, 2004 and 2005.  The case of Tony Bland was decided in the House of Lords almost 20 years ago but there has been almost no legislative activity in this sensitive area.  The Mental Capacity Act 2005 with its provision for people to make "Advance Decisions" to refuse treatment is perhaps the major exception to Parliamentary inactivity.

Lord Walker's concluding remarks are interesting since they point to the possibility that the judges might eventually have to step in so as to resolve cases even in controversial areas.  He referred to a comment of Lord Browne Wilkinson in the Bland case::

"The judges’ function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society.  If Parliament fails to act, then judge-made law will, ... , through a gradual and uncertain process, provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed.”

Lord Walker then concluded his speech by saying:

" ...., I repeat that judges cannot simply say “pass”. In the absence of legislative action they must resolve justiciable issues brought before them, however much they may feel that parliamentary intervention would have been the better and the more democratic course. As Lord Bingham said in another sensitive case about childcare* it is ultimately the duty of the court to give effect to its own judgment:  “That is what it is there for . . . once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.  So sometimes, when Parliament refrains from addressing a new problem, the court has no option but to give the best judgment that it can.”

* Re Z (A Minor)(Identification: Restrictions on Publication) [1997] Fam 1, 33

Other:


R (Pretty) v DPP [2002] 1 AC 800

In 2005 there was an Assisted Dying for the Terminally Ill Bill in Parliament which did not progress into law and, in 2009, an amendment to the law put forward to the Coroners and Justice Bill was rejected in the House of Lords - (see BBC).   This Parliamentary Briefing Paper is also a valuable source of information.

In 1977 the Law Commission considered various defences - Law Com No. 83 (1977) - Report on defences of general application.   At the time, the Commission was working toward a codification of the criminal law.  The report concluded against the inclusion of a defence of necessity in the proposed criminal code and recommended the abolition of any common law defence of necessity (if one existed).

See previous post looking at Article 2 E Conv HR - A further example where Article 2 was engaged was the case of Dianne Pretty v UK (2002) 35 EHRR 1.  The ECtHR held that the right to life did not imply its opposite - a right to die.  States are not under any obligation to permit voluntary euthanasia.
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Abu Qatada may leave UK voluntarily if .....

The long running Abu Qatada deportation issue may be drawing to an end.  Over around 8 years, the government has spent enormous amounts of public money on the various legal challenges to his deportation to Jordan.  (See Jack of Kent Resource page for a catalogue of the steps taken).    Recently, a new treaty was signed between the UK and Jordan though this remains to be ratified by both countries - (Law and Lawyers 24th April).  At a hearing before the Special Immigration Appeals Commission (SIAC), Abu Qatada's counsel Edward Fitzgerald QC has indicated that Abu Qatada will return voluntarily to Jordan provided that the new treaty is ratified - BBC News 10th May.

A voluntary return to Jordan will have the result that the courts will not, at least in the Abu Qatada case, have to pronounce on whether the treaty meets any objections, under the European Convention on Human Rights, to deportation.  Therefore,
it is possible that a challenge to the treaty may arise in some other case.  The European Convention (as interpreted by the European Court of Human Rights) prohibits the return of an individual to a State where he may suffer the death penalty or be subjected to torture  or inhuman or degrading treatment or punishment or, in Abu Qatada's case, where evidence at a possible trial in Jordan may have been obtained by the torture of others.  That interpretation of the Convention has prevailed in Abu Qatada's case.

The Home Secretary (Theresa May) was personally instrumental in the negotiation  of the treaty.  When it is ratified and if Abu Qatada leaves then she will be able to claim a political victory of sorts though it will not be a victory for her in the courts.  She is on record as wishing to at least reform the UK's relationship with the European Convention and would not rule out a withdrawal from it altogether.

In another 'torture-related' development, the UK government has been facing some difficult questions and concerns within the United Nations which monitors compliance with the UN Torture Convention - see The Guardian 9th May.  These concerns ought to be taken very seriously and properly answered though the authority of the UN in this area seems to be weakened when a representative of China is critical of the UK.  China has a high rate of executions and has refused British requests for reprieves.  Reports of torture continue to emerge. The current examination comes as the UK bids for election to the UN Human Rights Council, one of the organisation's key bodies.
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The Queen's Speech 8th May 2013 and the State Opening of Parliament

In a 92 page pdf document  the government has published details of the Queen's Speech 2013.  The document sets out not only the speech itself but contains background details to the various Bills and policies referred to in the speech.  The document merits a full reading by those seeking greater detail about what is planned.

A much shorter overview is at The Guardian 8th May - The Queen's Speech: the key points explained.

An Offender Rehabilitation Bill will extend statutory supervision after release at all those sentenced to short custodial sentences.  This Bill will also give 'Probation Providers' greater flexibility to develop new interventions with a view to reducing re-offending.  The Anti-Social Behaviour Bill will amend the existing law relating to anti-social behaviour with some 19 powers being condensed to 6; make forced marriage a criminal offence; amend the Dangerous Dogs legislation and take further action on illegal firearms. The law on extradition will be amended as recommendations of Sir Scott Baker's review are implemented.   A DRAFT Consumer Rights Bill is to be introduced and this will allow parliamentary examination of how the law might be altered to modernise and improve consumer rights.  This is an area where there is a great deal of existing legislation and clarification is welcome.  In response to the Hargreaves Review, an Intellectual Property Bill will reform the intellectual property framework for designs.  The Unified Patents Court will be implemented.

An excellent analysis of the Bills is at Politics.co.uk - Queen's Speech 2013: All the Bills in full.

The State Opening used to be held in October but,
when the Fixed Term Parliaments Act 2011 was implemented, the date was changed to the spring.  This was criticised at the time.  The State Opening brings together the Queen, the House of Lords and the House of Commons - the "Queen in Parliament".  Also the three arms of government (legislature, executive, judiciary) are in attendance as Her Majesty reads the speech.  In practice, the speech is prepared by the government of the day.

The picture shows the Secretary of State for Justice and Lord Chancellor handing over the speech.  Having read it, Her Majesty handed the speech back to the Lord Chancellor. It is interesting that the Secretary of State for Justice and Lord Chancellor has this role in the Lords given that he is not a member of the House of Lords.  See Chris Grayling's wikipedia entry - he is MP for Epsom and Ewell.

Until implementation of the Constitutional Reform Act 2005, the Lord Chancellor was invariably a peer and presided over the House of Lords.  He was a member of the executive and also Head of the Judiciary.  The last Lord Chancellor to preside over the Appellate Committee of the House of Lords was Lord Irvine of Lairg (Lord Chancellor from 1997 to 2003).  Lord Falconer of Thoroton (2003 to 2007) declined to do so.  The 2005 Act created the Supreme Court of the United Kingdom which started hearing cases in 2009 when its premises in Parliament Square were ready.

Today, the House of Lords has its own Lord Speaker and the Head of the Judiciary is the Lord Chief Justice of England and Wales.

Parliament - State Opening
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Domestic law and the European Convention on Human Rights - Part 2

The previous post of 5th May looked at a list prepared for the House of Commons of human rights cases involving the UK since 1975 and explained the basic scheme of the Human Rights Act 1998 (the HRA) - Human Rights cases since 1975.   Decisions of the European Court of Human Rights (the E Ct HR) and the enactment of the Human Rights Act 1998 (the HRA) have enabled significant and beneficial changes to our domestic law. Some examples follow.

THE most important human right is of course the right to life itself (ECHR Article 2). 
Back in 1995, in McCann and others v UK (1996) 21 EHRR 97, the E Ct HR found by a 10 to 9 majority that the UK was in breach of Article 2 when British soldiers killed suspected IRA terrorists in Gibraltar.  This was a highly controversial decision but the E Ct HR set out the general principles applicable to the use of lethal force by the military, police and security forces.  At the time, English law said little about this beyond permitting the use of 'reasonable force' in the prevention of crime etc - Criminal Law Act 1967 s.3.  The McCann case established that State is expected to exercise due diligence and care even in anti-terrorist operations and the ECtHR felt that it had a duty to examine most carefully whether the authorities of  a State that has killed someone have fulfilled that duty.

Those principles have been applied and developed in later cases.  For example, in some circumstances, there is a positive obligation on States to protect life - often referred to as the 'Osman Duty' from the case of Osman v UK (2000) 29 EHRR 245 actually decided by the E Ct HR in 1998.  This duty was recognised by the House of Lords in Re Officer L [2007] UKHL 36 and Chief Constable of Hertfordshire Police v Van Colle [2008] UKHL 50.

A further development is the need for a full and effective investigation into deaths occurring when state agencies are involved - R (Middleton) v HM Coroner for Somerset [2004] 1 AC 182 where the House of Lords held that, in order to be compliant with Article 2, the Coroners Act 1988 s11 had to be interpreted so that 'how' the deceased came by death meant not only 'by what means' but also 'in what circumstances.'  An effective investigation ensures that, as far as possible, the full facts are brought to light; that culpable and discreditable conduct is exposed  and brought to public notice; that suspicion of deliberate wrongdoing is allayed ; that dangerous practices are rectified; and that those who have lost a relative may at least have the satisfaction of knowing that lessons learned from the death may save the lives of others - speech of Lord Bingham in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51 at para. 31.   See also Hillsborough - Fresh Inquests - the question of Article 2 compliance and the post of 12th December 2012 on the murder, in 1989, of Pat Finucane.

In Human Rights and the next election - Roger Smith (CV here) argues that the HRA has played an enormous role in making our society more transparent and our institutions more accountable.   He gives the example of the behaviour of British forces in Iraq. The Act allowed redress against soldiers who mistreated prisoners such as Baha Mousa who was killed while in detention in Basra. It forced the Army to amend its interrogation procedures back to what the UK government had said since the 1970s that they were – without violence or threat.  We now have the Al Sweady inquiry into further events. The HRA has made all this possible and lifted the veil over one of the previously concealed areas of state activity. This may be uncomfortable for ministers but transparency is better for the nation as a whole and it is an interesting fact that Ministers often cite 'human rights' as a reason for military intervention.

A further example where Article 2 was engaged was the case of Dianne Pretty v UK (2002) 35 EHRR 1.  The Director of Public Prosecutions (DPP) refused to give an undertaking that Mrs Pretty's husband would not be prosecuted under the Suicide Act 1961 should he assist her to commit suicide in the event that her motor neurone disease became unbearable.  The ECtHR held that the right to life did not imply its opposite - a right to die.  States are not under any obligation to permit voluntary euthanasia.

In 2009, the House of Lords decided its last case before the Supreme Court of the United Kingdom came into being - R (Purdy) v DPP [2009] UKHL 45 .  Their Lordships directed the DPP to draw up a policy relating to prosecutions under the Suicide Act 1961 s2(1) and this was duly done (here).  This is an example where the strict law has not been changed but the application of the law has been modified.

A further important case was Supreme Court of the U.K. - Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 - and blogpost 8th February 2012.  In this case, the Supreme Court held that obligations under Article 2 were owed to a mentally ill patient who was not detained under mental health legislation and who attended hospital voluntarily for help / treatment.  The hospital was held to be in breach of those obligations and the girl's parents were held to be 'victims' of that breach.

In these times, there is a great deal of anti Human Right rhetoric.  In this context, it is worth noting the following from Lady Hale's judgment:

"A hospital trust, in breach of its duty of care towards its patient, allowed a young woman, who was suffering from a severe depressive episode with psychotic symptoms and had been admitted a week earlier after a serious suicide attempt, to go home on leave for two days. The only support plan was the care of her parents who were not in favour of her being allowed home. The following day she hanged herself from a tree in a well-known local beauty spot, at last succeeding in the suicide which she had previously attempted and seriously threatened even more often. The hospital trust has admitted liability to her and paid a sum in compensation to her estate. So why, some might ask, are we here?

We are here because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child. In this day and age we all expect our children to outlive us. Losing a child prematurely is agony. No-one who reads the hospital’s notes of the series of telephone calls made by this patient’s father to the hospital on the night in question can be in any doubt of that; or that the agony may be made worse by knowing that the loss both could and should have been prevented. It is not surprising, therefore, that parents are among the recognised victims when the right to life of their child, protected under article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is violated. It is also not surprising that, ... , they are victims, not only of the state’s failure properly to investigate the death, but also of the failure effectively to protect their child’s life."

The next post in this series will look at some further areas where the ECHR and HRA have been instrumental in bringing about further beneficial changes.

For an excellent and more comprehensive look at Article 2 see The Right to Life by Douwe Korff published in 2006.

Article 2

Right to life
1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

It will be noted that Article 2 permitted the death penalty.  Whilst that was the original position, the death penalty is no longer permissible in any circumstances.  This change came about with Protocol 6 which prohibited the death penalty except in time of war and Protocol 13 which now prohibits it under all circumstances.

Addendum

The Guardian 9th May 2013 - Is Cameron's Britain what we fought for?
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Regulation of the media ~ Alternative draft for a Royal Charter

In a post of 25th March the plans for media regulation were considered.  At the time it looked as though the proposed Royal Charter would be approved by the Privy Council on 15th May.  It is now reported that this will be delayed whilst an alternative draft Royal Charter is considered.  The alternative document has been drawn up by News International, Telegraph Media Group, Associated Newspapers, Trinity Mirror and Express Newspapers  - see The Guardian Draft alternative royal charter on press regulation.

A key concern is that the original draft charter placed amendment fully in the hands of politicians and therefore was seen as eroding media independence.  


Art. 9.2 of the original reads:

Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part) a provision of this Charter (“proposed change”) can take effect a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means that at least two thirds of the members of the House in question who vote on the motion do so in support of it.

Art. 9.2 of the alternative reads:

Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part) a provision of this Charter ('proposed' change') can take effect, the following must each have passed unanimously a resolution in favour of the proposed change, in each case at a meeting duly convened for that purpose:

a) the members of the Recognition Panel; and
b) the members of the Board of any recognised regulator; and
c) the members of the Board of all trade associations represented on the Industry Funding Body.

That's an awful lot of unanimity !  The Enterprise and Regulatory Reform Act section 96 would also apply:

Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.

Read the articles in HoldTheFrontPage 26th April and Daily Mail 25th April

The following appeared in the Daily Mail article: 


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Domestic law and the European Convention on Human Rights - Part 1

The relationship between domestic law in the United Kingdom and the European Convention on Human Rights (the Convention) is illustrated by a useful list of cases made available by Parliament this week. - Human Rights cases since 1975.  The list commences with Golder v UK (Prisoner's correspondence) back in 1975 and ends with the Animal Defenders International case in April this year.

The list is divided into two parts - (1) cases up to the end of 2000 and (2) cases from 2001 to 2013.  Part 1 takes us back to the time before the Human Rights Act 1998 (HRA) which came into force on 1st October 2000.   Interestingly, Part 1 (covering 26 years) lists 130 cases.  Part 2 (covering just over 12 years) lists 272 cases.

The idea underlying the HRA was  to 'bring rights home' by making 'Convention rights' enforceable in our domestic courts and to reduce the need for cases to go to the European Court of Human Rights (E Ct HR) at Strasbourg.



The HRA has become intensely disliked by some politicians often egged on by the sections of the media hammering away at the application of the Convention in relation to some high profile cases such as the extradition of Abu Hamza or Prisoner Voting.  There have been repeated calls for the repeal of the HRA and even withdrawal from the Convention even though withdrawal would send out a message to many a despotic regime that the UK was turning its back on human rights for which, in recent history, it has valiantly fought.  The general role, and effectiveness of, the Convention in protecting the rights of every individual is often forgotten in the heat of such debates and the media has no interest in fine detail.  Nevertheless, the published list shows areas where the UK was found to be in breach of the Convention and also areas where it was held that no breach had occurred.  Where a breach has been found, changes to domestic law have usually followed often to the major benefit of significant sections of the population.

When Convention rights are raised, our courts now take into account relevant decisions of the E Ct HR and will read and give effect to legislation in a way which is compatible with convention rights.  If that is not possible, then the High Court (or above) may issue a declaration of incompatibility which gives Ministers and Parliament an opportunity to consider the matter and alter domestic law so as to bring it into line with the convention but, it should be noted, the domestic law continues in force unless and until Parliament enacts changes.  It remains possible for cases to go to the E Ct HR subject to certain requirements such as 'exhaustion of domestic remedies.'

A later post will take a more in-depth look at the list with a view to bringing out some of the important changes to domestic law which have been brought about because of the influence of the Convention.  Whilst it is arguable that some of the changes would eventually have come about anyway, there can be no doubt that access to the European Court of Human Rights has spurred on some important developments in our law in areas where legislators may well not have acted otherwise.

Addendum 6th May:

The UK Human Rights blog's weekly roundup included the above post and drew attention to two listings by category of the cases - University of Law’s Trevor Jackson (click here - MS Word document) and from David Charlton (click here - Excel spreadsheet).

For some basic information about human rights in Europe and in the UK see Lawobserver.

Human Rights Watch - Human Rights debate in the UK

Addendum 7th May:

Manchester Evening News - The story of Auschwitz survivor Mayer Hersh - MBE tribute to Auschwitz hell camp survivor Mayer Hersh - Mr Hersh said: "My story is important, because it serves as a warning that the blessings of peace, freedom, democracy, and the concepts of justice and human and civil rights, can never be taken for granted. They are delicate and precious gifts that we must take care to nurture in ourselves, in our children, and in our communities.”
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Naming of suspects ~ a topical debate

Should arrested persons (suspects) be named by the Police?  Public knowledge of who is under investigation can sometimes assist either the police or the suspect.  Witnesses may come forward or individuals may provide useful information to the police. However, the automatic naming of those under investigation - especially in cases of very serious criminality or where the offence is of a type attracting particular condemnation in the community - could cause irreparable damage to reputation where, for example, the arrest turns out to be unfounded.  At the heart of the matter are the rights to a fair trial (Article 6);  respect for private and family life (Article 8) and freedom of expression (Article 10).



The ACPO view:

On 2nd May, the Association of Chief Police Officers issued a media release  setting out their position.  ACPO advises police forces to name those who have been charged but names of those arrested are only released, prior to charge, if it is considered necessary for the prevention or detection of crime or if there is a serious public interest.  The media release states that new guidance is being developed with a view to avoiding inconsistencies where some police forces confirm details of an arrested individual if journalists claim to have information from other sources.

Media view:
ise forces, working with the CPS, to name those who have been charged
ACPO lead on communications, Chief Constable Andy Trotter, said: “We advise forces, working with the CPS, to name those who have been charged and that position will not change.
“When an individual has been arrested our current guidance is not to name them and we will only release the name for the prevention or detection of crime, or if there is a serious public interest.
“ACPO is working on new guidance to provide clear direction to avoid inconsistencies where some police forces confirm details of an arrested individual if journalists have gathered the information from other sources.
“This does not affect what media themselves choose to publish.”
naming
02 May 2013
Media Centre Home > Press Releases


ACPO position on naming people who have been charged

We advise forces, working with the CPS, to name those who have been charged
ACPO lead on communications, Chief Constable Andy Trotter, said: “We advise forces, working with the CPS, to name those who have been charged and that position will not change.
“When an individual has been arrested our current guidance is not to name them and we will only release the name for the prevention or detection of crime, or if there is a serious public interest.
“ACPO is working on new guidance to provide clear direction to avoid inconsistencies where some police forces confirm details of an arrested individual if journalists have gathered the information from other sources.
“This does not affect what media themselves choose to publish.”
02 May 2013
Media Centre Home > Press Releases


ACPO position on naming people who have been charged

We advise forces, working with the CPS, to name those who have been charged
ACPO lead on communications, Chief Constable Andy Trotter, said: “We advise forces, working with the CPS, to name those who have been charged and that position will not change.
“When an individual has been arrested our current guidance is not to name them and we will only release the name for the prevention or detection of crime, or if there is a serious public interest.
“ACPO is working on new guidance to provide clear direction to avoid inconsistencies where some police forces confirm details of an arrested individual if journalists have gathered the information from other sources.
“This does not affect what media themselves choose to publish.”

Bob Satchwell of the Society of Editors has claimed that suspects should be named - Hall case shows suspects should be named says SoE boss.  Satchwell argues that naming Stuart Hall resulted in other victims of Hall's sexual offending coming forward.  In The Guardian 10th April  Joshua Rozenberg argues that secret arrests are not the answer.   As Rozenberg points out, a fair trial is protected by reporting restrictions applicable from the time of arrest of a suspect.  Breach of reporting restrictions can be a contempt of court.  How would news organisations reporting on crime know if they are at risk of prejudicing a trial when they cannot be sure whether the defendant has been arrested?

Further discussion is at Press Gazette 29th April 2013 - ACPO 'secret arrests' proposal is bid to end 'bizarre parlour game'

Leveson view:

The Leveson Report (Volume 2 Chapter 4) discussed police and media interaction.  In the context of media being present during police operations, Leveson wrote (Vol 2 Ch 4 para 3.3):


"Overall I would endorse the general views of the Commissioner, Bernard Hogan-Howe, and Chief Constable Andrew Trotter, of the British Transport Police, on this issue. Police forces  must weigh very carefully the public interest considerations of taking the media on police operations against the rights of the individuals who are the subject of such an operation. Forces must also have directly in mind a consideration of any potential and consequential impact on the victims in such cases. More generally, I think that the current guidance in this area needs to be strengthened. For example, I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press or the public: these details are not routinely announced by way of press release; that the press were present at the arrest should make no difference."

In essence, Leveson supports a stronger set of guidelines to be applied by the police.  He refers to 'exceptional and clearly defined circumstances' when the naming of suspects would be acceptable.  Obviously, that begs the questions: what is 'exceptional'; ' in what circumstances.'

Views of some barristers:

Maura McGowan QC (Chair of the Bar Council) has suggested that those accused of sexual offences should not be named even after charge because such cases carry 'such a stigma' - see 'Lawyers at war over calls to give rape accused anonymity.'  Other lawyers, such as John Cooper QC, have argued that sexual offences ought not to be a special case.

The Law Commission view:

In Consultation Paper 209 (Contempt of Court) the Law Commission states (para 2.20):

' .. we believe that further reforms can be introduced to ensure the fair application of the [Contempt of Court Act 1981] and to ensure greater certainty and consistency in its application. We propose that the Home Office request that the Association of Chief Police Officers issue guidance, for dissemination to police forces, which would encourage the police to adopt consistent decision-making about whether to release information about arrestees following a request from the media to identify the arrestee. We consider that such policy should establish that, generally, the names of arrestees will be released but that appropriate safeguards will need to be put in place to ensure that some names are withheld, for example, where it would lead to the unlawful identification of a complainant, where the arrestee is a youth or where an ongoing investigation may be hampered. We consider that such safeguards should be widely defined given that once a name is released, it may not be possible to retract it.'

The Commission asks Question 6.3 - 'Do consultees agree that there should be a consistent policy adopted by police forces about whether to release information about arrestees, with appropriate safeguards?'

So, for the Law Commission, the emphasis is on naming suspects subject to defined exceptions.

The judiciary view:

In a response to the consultation, Lord Justice Treacy and Tugendhat J have come down in favour of not naming suspects between arrest and charge.  At para. 5 of their response they offer their answer to Question 6.3 in the consultation:

A decision by the police to publish the name of a person arrested must be made after consideration of the rights of such persons, including their rights under ECHR Art 8, on a case by case basis. The police arrest many people who are never charged. If there were a policy that the police should consistently publish the fact that a person has been arrested, in many cases that information would attract substantial publicity, causing irremediable damage to the person’s reputation. Even if the fact that the person was not charged were subsequently published, that would not receive the same publicity, and would not prevent subsequent internet searches disclosing that the person had been arrested. See eg HM Attorney-General v MGN Ltd [2012] 1 WLR 2408; [2011] EWHC 2074 (Admin) (the case of Christopher Jefferies, who was arrested on suspicion of the murder of his tenant).'  Treacy LJ and Tugendhat J then go on to adopt the statement in the Leveson report which I have cited above.

The judicial response is therefore against the naming suspects though a decision to do so can be made on a case by case basis.

Information Commissioner view:

See the response of the Information Commissioner to the consultation.  The Commissioner indicates that automatic naming of suspects will raise human rights concerns.

Teachers - already enjoy special protection:

Parliament has already provided for teachers to have protection in specified situations:  Allegations against teachers ~ a remarkable restriction. 

In that post it was noted:

The "mischief" with which the section is intended to address is that sometimes false allegations (e.g. of assaulting a pupil) have been made against teachers with consequential devastating impact on their careers and lives.   Will this legislation create a new trend toward protection of individuals once an allegation involving criminality is made against them?   For instance, the idea of giving anonymity to men accused of rape has been argued from time to time and a plan to grant to such anonymity was abandoned by the government - BBC July 2010.

Parliament's view:

Parliament has addressed the question of protection for teachers (above) and has rejected anonymity for those accused of certain sexual offences.  The present discussion appears to be taking place entirely outside Parliament and one is left with the feeling that the matter is being allowed to drift into a situation in which suspects are only exceptionally named.  Perhaps the time is due for Parliament to apply itself to this vitally important matter.

Other links:

Media Law - identification of suspects.

Telegraph 29th July 2011 - Chris Jefferies wins libel payout  - "The retired schoolmaster was not at London's High Court for the settlement of his actions against the publishers of the Sun, the Daily Mirror, the Sunday Mirror, the Daily Mail, the Daily Record, the Daily Express, the Daily Star and the Scotsman."   Chris Jefferies was arrested in connection with the Jo Yeates murder in Bristol and suffered some appalling media reporting - post of 24th January 2011
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