ECHR Rules Terrorism justifies closed courts

courtclosedEuropean Court of Human Rights

published: January 15, 2016

Sher and Others v United Kingdom (Application No 5201/11)

Before G. Raimondi, President and Judges P. Hirvelä, L, Bianku, N. Tsotsoria, P. Mahoney, F. Vehabović and Y. Grozev

Section Registrar: F. Elens-Passos

Judgment: October 20, 2015

The right of suspected terrorists to take proceedings to challenge the lawfulness of their detention did not preclude the use of closed court hearings, at which neither the detainee nor his lawyer was present, for the submission of confidential information supporting the authorities’ line of investigation.

The European Court of Human Rights (Judge Vehabović dissenting) so held, inter alia, in determining that there had been no violation of the right of the applicants, Sultan Sher, Mohammed Rizwan Sharif and Mohammed Umer Farooq, to take proceedings to challenge the lawfulness of their detention, as guaranteed by article 5.4 of the European Convention on Human Rights, at hearings for warrants of further detention on expiry of the initial 48 hours permitted under the Terrorism Act 2000 following their arrest as part of a counterterrorism operation. The applicants were detained for a total of 13 days before being released without charge.

THE COURT said that the threat of an imminent terrorist attack had justified restrictions on the applicants’ article 5.4 rights. Terrorism fell into a special category.

Article 5.4 could not preclude the use of a closed court hearing for the submission of confidential sources of information supporting the authorities’ line of investigation. It could not be applied in such a manner as to put disproportionate difficulties in the way of police authorities in taking effective measures to counter organised terrorism.

Moreover, the legal framework under Schedule 8 to the 2000 Act, governing proceedings for warrants of further detention, had set out clear and detailed procedural rules enabling the applicants to know the nature of the allegations against them and, with legal representation, to have the opportunity to refute those allegations and to participate effectively in proceedings concerning their continued detention.

Furthermore, the applicants and their legal advisers had been given reasons for the withholding of certain information. The information to be withheld had been limited to the further inquiries to be conducted and had been submitted to a judge who, in closed session, had been able to ensure that no material had been unnecessarily withheld from the applicants and to determine, in their interests, whether there had been reasonable grounds for believing that their further detention had been necessary.

Indeed, even in the absence of express provision in the relevant law, the judge had had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings. Significantly, the applicants had not requested the appointment of a special advocate.

Whole life sentence to be re-examined

A triple killer’s claim that his whole-life prison sentence breaches his human rights is to be re-examined by European judges.

Arthur Hutchinson’s case will be considered again after it was referred to the Grand Chamber of the European Court of Human Rights (ECHR).

Earlier this year a judgment from the Strasbourg court ruled that there had been no violation.

However, Hutchinson applied for the case to be passed to the ECHR’s Grand Chamber. It has now emerged that his request has been accepted after it was assessed by a panel of five judges.

After an original Chamber judgment has been delivered, parties are able to ask for a referral to the Grand Chamber for fresh consideration. Requests are accepted on “an exceptional basis”, according to the ECHR’s website.

No details of the reason for referring Hutchinson’s case have been released.

The move will bring fresh scrutiny of the protracted issue of “life means life” terms.

Hutchinson was jailed in 1984 for stabbing Basil and Avril Laitner to death after breaking into the couple’s Sheffield home, and then killing one of their sons.

The judge in his original trial ruled that he should serve 18 years but then-home secretary Leon Brittan later determined he should face the whole-life tariff.

In 2008, Hutchinson had a domestic appeal against whole-life tariffs kicked out by the Court of Appeal.

He was the first Briton to challenge the sentence after a controversial ruling by the Grand Chamber of the European Court of Human Rights in July 2013 that whole-life tariffs breach human rights.

The Strasbourg-based court held that there had been a violation of Article 3 of the European Convention on Human Rights – which relates to inhuman and degrading treatment – on the basis that whole-life orders were not “reducible”.

In that decision judges did not say whole-life sentences were incompatible with the convention, but that there had to be the possibility of a review at some stage and that current laws allowing for release in exceptional circumstances were unclear.

Relying on Article 3, Hutchinson claims that his whole life sentence amounts to “inhuman and degrading treatment” as he has no hope of release.

Court of Appeal judges ruled last year that the Grand Chamber was wrong when it said in a previous ruling that the law of England and Wales did not clearly provide for “reducibility”, saying the domestic law “is clear as to ‘possible exceptional release of whole-life prisoners'”.

They underlined the power given to the Secretary of State to release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.

In February judges at the ECHR found by a majority that they consider the legal situation in the UK to be in line with human rights laws, ruling that in Hutchinson’s case there was no violation of Article 3 as the Secretary of State has the power to review whole-life sentences.

Mark Leech editor of the national prisoners newspaper Converse said he would expect the re examination of the whole life tariff to uphold the original decision.

Mr Leech said “It would be an extraordinary state of affairs if someone could murder three people and expect that one day they could once again walk the streets – I just dont think the public would either understand or accept that.”

Wrongly convicted men seek landmark payout ruling

Sam Hallam - Innocent
Sam Hallam – Innocent

Two men convicted of crime who served long sentences before being freed by the Court of Appeal are fighting potential landmark cases for compensation.

They are asking the High Court to rule that UK law is incompatible with the European Convention on Human Rights (ECHR) because it wrongly restricts compensation in “miscarriage of justice” cases.

Their judicial review challenges are the first to be brought against the coalition government’s decision last year to narrow eligibility for an award.

The first applicant is Sam Hallam, who served over seven years for murder after being ordered, as a youth, to be detained at Her Majesty’s pleasure for a minimum term of 12 years.

The second is Victor Nealon, who was given a life sentence for attempted rape. He served 17 years in jail – 10 more than the seven-year minimum term – after he persisted in claiming he was innocent.

Both men were set free after appeal judges ruled fresh evidence made their convictions unsafe.

Heather Williams QC, appearing for Mr Hallam, said the Criminal Justice Act 1988 which governs compensation payments was amended last year in a way that made it “incompatible with the presumption of innocence” in article 6(2) of the ECHR.

A narrower definition of miscarriages of justice than the previous version was inserted in March last year into the 1988 Act through the Anti-social Behaviour, Crime and Policing Act 2014.

Applicants for compensation now have to satisfy the Justice Secretary that “a new or newly discovered fact shows beyond reasonable doubt” that they did not commit the offences for which they were jailed.

The QC told Lord Justice Burnett and Mrs Justice Thirlwall at London’s High Court: “This means in effect that the applicant has to prove his innocence, and the Secretary of State has to assess whether he has established his innocence.”

Decisions of the European Court of Human Rights in Strasbourg showed that such a criterion was “not permissible”.

Lawyers for the Justice Secretary are arguing that the Supreme Court has already decided that article 6(2) is not engaged, but even if it was the current rules on compensation do not infringe the presumption of innocence.

Mr Hallam was arrested after a gang of youths attacked Essayas Kassahun, who died two days later, on October 11 2004.

Mr Hallam, then aged 17, was convicted of Mr Kassahun’s murder, conspiracy to commit grievous bodily harm and violent disorder.

But in May 2012 – seven years and seven months into his sentence – appeal judges decided all three sentences were unsafe.

They ruled that new evidence, in the form of timed and dated mobile phone photographs, dramatically undermined accusations that Mr Hallam had deliberately concocted a false alibi.

But the Ministry of Justice (MoJ) rejected his application for compensation for miscarriage of justice in August 2014 on the grounds that the phone evidence had been partly, if not wholly, attributable to Mr Hallam himself.

The MoJ also said the new evidence did not show “beyond reasonable doubt that Mr Hallam did not commit the offence….”

In the case of Mr Nealon, he was originally convicted of attempted rape on January 22 1997 at Hereford Crown Court and sentenced to life.

His conviction was quashed in December 2013, four years after a DNA test pointed to ‘an unknown male’ – not Nealon – as being the likely assailant.

Although denied legal aid, he was determined to receive compensation for the 17 wasted years spent in jail and the trauma he continued to suffer.

But in June 2014, the Ministry of Justice rejected his application on the grounds that the DNA analysis “did not show beyond reasonable doubt that the claimant did not commit the offence”.

The hearing continues tomorrow.

European Court Rules Whole Life Sentences Lawful

Arthur Hutchinson
Arthur Hutchinson

Triple killer Arthur Hutchinson, who murdered three members of the same family in Sheffield, has lost his challenge at the European Court of Human Rights against his whole-life prison sentence.

The judgment is the latest development in the protracted legal wrangle over “life means life” terms.

Hutchinson was jailed in 1984 for stabbing wealthy couple Basil and Avril Laitner to death after breaking into their Sheffield home on the night of their daughter’s wedding, then killing one of their sons.

He was the first Briton to challenge the sentence after a controversial ruling by the Grand Chamber of the European Court of Human Rights in July 2013 that whole-life tariffs breach human rights.

The Strasbourg-based court held that there had been a violation of Article 3 of the European Convention on Human Rights – which relates to inhuman and degrading treatment – on the basis that whole-life orders were not “reducible”.

The court did not say whole-life sentences were incompatible with the convention, but said there had to be the possibility of a review at some stage and that current laws allowing for release in exceptional circumstances were unclear.

But judges ruled on Tuesday that in Hutchinson’s case there was no violation of Article 3 as the Secretary of State has the power to review whole-life sentences.

Court of Appeal judges ruled last year that the Grand Chamber was wrong when it said the law of England and Wales did not clearly provide for “reducibility”, saying the domestic law “is clear as to ‘possible exceptional release of whole-life prisoners'”.

They underlined the power given to the secretary of state to release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.

In Tuesday’s judgment the European judges found by a majority that they consider the legal situation in the UK to be in line with human rights laws.

In their written ruling, they said: “In the circumstances of this case where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the court must accept the national court’s interpretation of domestic law.”

Mark Leech editor of The Prisons Handbook for England and Wales said he was disappointed by the ruling.

Mr Leech said: “I wish they had been more courageous, there were grounds for doing so, but I suspect they were concerned not to increase the already trenchant criticism of the ECHR interferring in UK domestic matters.”

The list of whole-lifers includes some of the most notorious prisoners in Britain, including one-eyed police killer Dale Cregan, who lured Pcs Nicola Hughes and Fiona Bone to their deaths in a gun and grenade attack; Mark Bridger, who murdered five-year-old April Jones; and Moors murderer Ian Brady.

Six years ago, Hutchinson had a domestic appeal against whole-life tariffs kicked out by the Court of Appeal.

The judge in his original 1984 trial at Sheffield Crown Court ruled that he should serve 18 years but then-home secretary Leon Brittan later ruled he should face the whole-life tariff.

Prisoner Vote Decision Delayed Again

ballot-box

A decision over whether prisoners should be given the vote could delayed until after the next general election, the Justice Secretary has indicated.

Chris Grayling said complex recommendations made by a cross-party committee about how to deal with the controversial issue had caused delays, and refused to rule out kicking the issue into the next parliament.

The Tory last year published a draft Bill offering MPs three options – giving the vote to prisoners serving less than four years or less than six months or keeping the blanket ban.

After the recommendations were set out, a committee of MPs and peers recommended that voting rights should be given to prisoners serving short sentences or approaching the end of their time behind bars.

They said it would be ”wholly disproportionate” for the UK to defy a ruling by the European Court of Human Rights, which has said Britain’s ban on votes for those behind bars is a breach of their human rights.

The committee called on the Government to table a Bill granting the vote in local, general and European elections to those serving less than 12 months or within six months of release, with exceptions for those convicted of serious crimes.

Prime Minister David Cameron has made clear he does not want to extend votes to prisoners, telling MPs it would make him ”physically ill”, and a House of Commons vote in 2011 saw MPs vote by an overwhelming 234 to 22 to preserve the ban.

Quizzed by the House of Lords Constitution committee about the Government’s progress, Mr Grayling said the committee’s recommendation was the reason for the “slightly slow response”.

He said: “The position we are in at the moment is we are still considering the response from the committee, and the reason that we are taking a bit of time over this is not that we have moved away from our earlier position but because the option that the committee recommended – which was to provide, or to be considered, providing votes for prisoners in the last few months of their sentence – actually is quite complex.

“So, we need to take quite a careful look at what the viability is of doing that. Obviously, I would wish, in whatever measures in due course are brought before the House, to be able to reflect the views of the committee, but it is not something where you can simply tick the box and say ‘yep, fine’.

“It’s actually quite different to anything that has previously been envisaged. It does require some careful analysis.”

Asked if the delays meant the matter would probably be pushed beyond the end of the parliament, Mr Grayling replied: “I couldn’t say that for certain yet. But it certainly wasn’t a straightforward recommendation because, as you can imagine, we have got people at different stages of their sentence, we have got people who are on indeterminate sentences, and so looking at how exactly you deal with that, and of course, people who are subject to parole board release as opposed to automatic release again causes a logistical issue for us.”

Mr Grayling told the committee it was Conservative policy to replace the Human Rights Act but insisted the details of how that would be done would be set out in the party’s manifesto.

“Distasteful”: Ministers Plan To Sidestep Human Rights Ruling

Paedophile Robert Black given a Whole Life term
Paedophile Robert Black given a Whole Life term

Murderers and those convicted of other serious offences could be given sentences lasting hundreds of years to sidestep European regulations that ban whole-life terms, it is reported – which one critic called ‘distasteful’..

Ministers are considering introducing the lengthy sentences to get around a ruling by the European Court of Human Rights (ECHR), the Daily Telegraph said.

The court last year declared that whole-life tariffs, which can be imposed by English judges, were a breach of the European Convention on Human Rights because they allowed for no “right to review”.

Allowing judges to sentence criminals for hundreds of years is one of the options the government is considering to overcome the human rights ban.

Sentences of extreme length would effectively amount to the same as a whole-life term, but would still allow for prisoners to have their sentence reviewed and potentially reduced.

A government source told the Telegraph: “The European Court of Human Rights seems to be making decisions a million miles away from what the vast majority of the public think.

“They don’t want any possibility of the most horrible of criminals walking the streets again, and this plan could be a way to make sure that doesn’t happen.”

There are 49 prisoners serving whole-life terms in England and Wales. One killer, Ian McLoughlin, who was sentenced to a minimum of 40 years for murdering a man while on day release from another murder sentence in July, avoided a whole-life term because of the ECHR ruling, the Telegraph said.

Mark Leech editor of Converse the national newspaper for prisoners said side-stepping court judgements was not the way for any government to behave.

“There is something quite distasteful about this Goverment’s constant chipping away at Human Rights legislation and court judgements – and this attempt to sidestep a court ruling is not the way for any government to behave.

“Instead of sidestepping judgements with some deft but dishonest legislative changes they should instead comply with the court’s ruling and ensure that those given whole life terms have the chance to have those terms reviewed after serving 25 years – the chances are nothing will change anyway, but at least they should be given the chance to argue their case.”

Tory Plans On Human Rights Shake Up

Plaatje-Christopher-Human-Rights

The Conservative Party will draft proposed new laws to curtail the impact of European human rights legislation on Britain in the coming year, Justice Secretary Chris Grayling has said.

Pulling out of the European Convention on Human Rights altogether is still being considered by the party, Mr Grayling added.

Other possibilities are also being reviewed as the Tory pitch for the 2015 general election is drawn up.

Speaking on the BBC Radio 4 Today programme, Mr Grayling said the final proposals would emerge shortly.

He said: “Whatever we try to do as a party – because this is not an issue that unites the Coalition… the Conservative Party’s intention is to go into the next election with a clear plan for change.

“It is absolutely clear Parliament has the sovereign right to implement that change should it choose to do so.

“We have been looking at a number of options, of which leaving the Convention is one. It’s not the only option we are considering and we will bring forward plans in the next few weeks which will set out very clearly what we will do and how we will do it.

“Later in the year we will publish a draft Bill which will set out precisely how that legal change will take place.”

Mr Grayling said the original drafting of the Convention was not a problem as it included a “sensible balance” between rights and responsibilities.

But he repeated criticisms of its interpretation and implementation – and impact on the British courts.

“There are four different principles that have to underpin what we do,” he said.

“We have to curtail the role of the court in the UK, we have to replace the Human Rights Act, which as (former Lord Chief Justice) Lord Judge rightly says is one of the key reasons why the European Court of Human Rights seems to have such sway in the UK.

“We have got to ensure there is a balance of rights and responsibilities in our laws – and that balance of rights and responsibilities does exist in the original Convention.

“And above all, we have to make our Supreme Court supreme. I do not believe decisions about the way this country is governed – we are a democracy after all – should be taken elsewhere.”

Attorney General Warns Of ‘International Anarchy’ Over Prisoner Voting

dominic-grieve

Flouting European judges over prisoner voting would risk international “anarchy”, the Government’s chief law officer has warned.

Attorney General Dominic Grieve, above, said sticking to international rules could be “irksome” at times.

But it had been the “settled view” of British governments for centuries that such obligations should be met.

The intervention came in evidence to the parliamentary Joint Committee on prisoner voting.

The MPs and peers are considering how to respond to a European Court of Human Rights ruling against the UK’s blanket ban on convicted prisoners taking part in elections.

David Cameron has said that the idea of overturning the ban makes him “physically sick”, and the Commons overwhelmingly rejected the prospect in an indicative vote.

The committee has been asked to consider three options for a draft bill: giving the vote to convicted prisoners serving up to six months, giving it to those serving up to four years or keeping the existing blanket ban.

Mr Grieve said parliament had the power to withdraw from the European Convention on Human Rights, or any other commitment.

“Many of these international legal obligations, they impose obligations on others which we think benefit the international order and indeed us,” he said.

“But at the same time they may at times impose obligations on us.

“That obligation may at times be irksome.

“You can always withdraw from an obligation by leaving a treaty or denouncing it.

“But while you are adhering to it, it seems to me that one has to think very carefully about what the consequences are in deciding that you can cherrypick the obligations that you are going to accept.

“Whilst it may be perfectly possible to disregard them you are creating a degree of anarchy in the international order that you are trying to promote.”

The Tory MP and QC – who personally argued the Government’s case to the court – said it would be “no slight matter” to ignore the ruling.

“You can’t expect to be able to get other countries to observe international legal obligations if you choose not to,” he said.

Thorbjorn Jagland, Secretary General of the Council of Europe, told the committee it would be impossible for the UK to leave the convention on human rights and remain a member of the council.

He warned that Britain’s international influence would be diminished if it decided to go for the “nuclear possibility” of not complying with the ruling, and the whole ECHR system would be compromised.

“The implications for the Council of Europe would be… that other countries will start to do the same and it will be the beginning of the weakening of the whole convention system,” he said.

“If one says that we can pick and choose the judgments that we want to execute, then others will say exactly the same and then this convention will be another convention, for instance like they have in the United Nations.

“They are very weak.

“They are there but there is no enforcement of the standards.

“If you start to pick and choose the judgments from the court of course the court will be weakened and in the end have no meaning.”

Mr Jagland added: “The impact for Britain as I see it would be negative.

“It would harm UK reputation and influence in Europe and in the world.

“Can you imagine what would happen if the UK as the founding father of this institution is to leave it?”

Mr Jagland said: “Europe cannot afford to let the UK leave the whole convention system, which is so important.

“None of us should put that to the (test).

“We should try to avoid it.”

The strength of the ECHR was that individual citizens from member states were able to petition it on points of law, he said.

Mark Leech editor of Converse the national newspaper for prisoners in England and Wales said the issue of prisoner voting brought into focus the sharp distinction between political reality and rhetoric.

Mr Leech said: “Politicians of every colour continually tell us they want to reduce reoffending, they want to help those in prison to lead law-abiding lives both in custody and after release, in fact there is a large notice to that exact effect pinned to the front gate of every prison in the country.

“And yet, when you try and see the translation of that theory into practice it falls at the first hurdle by refusing prisoners the ability to vote, excluding them from society, refusing to follow the judgment of the highest human rights court in Europe, a court the UK has signed up to and in which we played a central part in creating – criminal justice policies on rehabilitation are, sadly, shown to be nothing more than a sham.”