Sweden comes to the rescue of UK prisoners on votes issue

Sweden comes to the rescue of UK prisoners on votes issue

Dear Mr Hirst,

We hereby confirm the reception of your e-mail dated October 17, 2011, in which you express your concern for the issue of the U.K. comply of the judgement of your case.

Please be informed that Sweden in the Committee of Ministers will supervise how the judgement will be implemented in the U.K.

Best regards,

The Swedish Representation
to the Council of Europe
67, Allée de la Robertsau
67000 Strasbourg
FRANCE

A fox pounces on a mouse under the snow in Yellowstone Park

A fox pounces on a mouse under the snow in Yellowstone Park

This sequence of photos shows a fox pouncing on a mouse under the snow in Yellowstone Park. Wildlife photographer Richard Peters caught the action while travelling through Lamar Valley in Yellowstone National Park. He explained: "We watched it walk across the snow, stopping from time to time to listen for mice activity underneath the snow cover...
Picture: Richard Peters/Rex Features

Have a weary Christmas and a crappy New Year...

Have a weary Christmas and a crappy New Year...

Britain will be back in recession this winter, warns OECD

Longer dole queues in prospect, says thinktank, as Bank governor speaks of 'enormous challenges'

See you in court Ma'am!

See you in court Ma'am!

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

As I am a freeman I have no wish to serve the Foreign Secretary and Justice Secretary like I was a servant and they my masters. Save for serving them with a court summons issued at Hull County Court. In particular, William Hague and Kenneth Clarke are the Ministers responsible for failing to abide by the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) judgment in Hirst v UK (No2).

Apparently, the District Judge states "It is not clear who the Cabinet Office, Electoral Commission or Parliament is.

I claim that those collectively responsible for the breach of human rights should accept service of the County Court summons.

The District Judge states I need "to clarify and specifically name in [the] claim form".

I believe that the Parliamentary Assembly of the Council of Europe (PACE) clarifies the position from an international and European law perspective: "4. In order to ensure the long-term effectiveness of the Convention system, the principle of subsidiarity must be fully operational in all states parties to the Convention. The Interlaken process should therefore take into account, in particular, a number of matters to which the Assembly attaches particular importance and which do not require amendment of the Convention: the need to strengthen implementation of Convention rights at the national level (including the res interpretata authority of the Court’s case law); the improvement of the effectiveness of domestic remedies in states with major structural problems, and the need to rapidly and fully execute the judgments of the Court".

I specifically name the UK, that is, the 3 arms of the State; Executive, Parliament and Judiciary.

The Queen is said to be the Head of State, and David Cameron is the head of government. Executive power is exercised by Her Majesty's Government, on behalf of and by the consent of the Monarch, as well as by the devolved governments of Scotland and Wales, and the Executive of Northern Ireland. Legislative power is vested in both the government and the two chambers of the Parliament of the United Kingdom, the House of Commons and the House of Lords, as well as in the Scottish parliament and Welsh and Northern Ireland assemblies. The judiciary is independent of the executive and the legislature, the highest national court being the Supreme Court of the United Kingdom (Source: Wikipedia).

What remedy does justice demand? Clearly s.3 of ROPA 1983 must be amended to ensure that it is compatible with Article 3 of the First Protocol of the ECHR. The Human Rights Act 1998(HRA) also needs to be amended to include Articles 1 and 13 of the ECHR, had this been done in the first place it is possible that my case need not have gone all the way to Strasbourg and back again. The High Court abdicated responsibility, and erred in law by deferring to Parliament. Given the lack of political will in Parliament for such a necessary reform, and to honour the UK's obligations to the Council of Europe, the Judiciary needed to exercise its independence and provide a check and balance upon State abuse. Given that the FCO argued that £1,000 for the loss of the vote is reasonable, this should be paid to each inmate who suffered the human rights abuse during each election since my case was decided.

Ukraine: The independence and efficiency of the judiciary must be protected as a matter of priority

Ukraine: The independence and efficiency of the judiciary must be protected as a matter of priority

Kyiv, 25/11/11 – “The protection of the right to a fair trial should be central to judicial reform efforts” said the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, at the end of a week-long visit to Ukraine. “In order to guarantee this fundamental human right to everyone, courts must be independent, impartial, and efficient.”

A large proportion of the judgments against Ukraine delivered by the European Court of Human Rights have concerned violations of the right to a fair trial. The judgments point to certain systemic problems, which include excessive delays in court proceedings as well as non-enforcement of domestic judicial rulings.

The extensive resort to preventive custody – which can last for several years – continues to be a major human rights problem, which also worsens prison overcrowding. The Ukrainian authorities are now considering legislative amendments which would apply detention before final sentence in more limited circumstances than is presently the case.

The Commissioner noted with concern the uncertain situation with respect to the Supreme Court, which has been prevented from meeting in plenary and appears to be in a state of limbo. In addition, he expressed concern to his official interlocutors about the possibility to subject judges to disciplinary or criminal responsibility for taking decisions which may not be seen as “correct” by certain authorities.

“Independence and impartiality are fundamental principles in which justice should be grounded,” said the Commissioner; “If these principles are undermined, the system loses its credibility, which can be very damaging to the functioning of democracy.”

The Council of Europe has provided expert advice on the judiciary and the status of judges, criminal procedure and other legislative acts. The Commissioner urged the Ukrainian authorities to apply this advice in their ongoing legislative reform efforts.

For the first time, Commissioner Hammarberg visited the Autonomous Republic of Crimea, where he discussed human rights issues relating to the different ethnic and linguistic communities, including the Crimean Tatars, living in this area. “One of the most unique and valuable features of Crimea is its diverse, multi-cultural population. Efforts to promote tolerance throughout society, as well as a genuine dialogue between the authorities and all minority groups, are essential for preserving this heritage and avoiding discrimination or marginalisation.”

PACE President welcomes ‘new ideas’ to deal with European Court backlog

PACE President welcomes ‘new ideas’ to deal with European Court backlog

Strasbourg, 25.11.2011 – PACE President Mevlüt Çavusoglu has welcomed “new ideas” to deal with the backlog of thousands of cases clogging up the European Court of Human Rights.

Addressing the Assembly’s Standing Committee in Edinburgh, the President said that reform of the Court, and strengthening of the European Convention on Human Rights – which are priorities of the British chairmanship – were of the “utmost importance”.

He also pointed to the need to strengthen implementation of the Convention rights at national level, improve domestic remedies, and rapidly and fully execute judgments of the Court, all long-standing demands of the Assembly.

The President also called on the British authorities to make progress as regards EU accession to the European Court of Human Rights.

Finally, he looked forward to close co-operation with the UK authorities on further development of the Council of Europe’s Neighbourhood policy, both in northern Africa and central Asia.

ADDRESS BY MR MEVLÜT ÇAVUŞOĞLU,

PRESIDENT OF THE PARLIAMENTARY ASSEMBLY

OF THE COUNCIL OF EUROPE, ON THE OCCASION

OF THE STANDING COMMITTEE OF THE PACE

EDINBURGH, Friday 25 November 2011

Minister,

Dear colleagues,

Ladies and Gentlemen

It gives me a great honour and pleasure to open this meeting of the Standing Committee which is being held in Edinburgh, within the framework of the UK Chairmanship of the Committee of Ministers. On behalf of the Assembly and myself, I should like to thank the British Parliament for its warm welcome and hospitality, as well as for the excellent organisation of our meetings. I am extremely glad that Mr. David Lidington, Minister for Europe, has found time for this exchange of views with us today.

The priorities that the UK Chairmanship brings to the table are of vital substance to our organisation and their significance should not be underestimated. I am confident that under the UK leadership, the promotion and protection of human rights, which are a fundamental principle of our institution, will be given great importance.

The first priority is indeed of the outmost importance – reform of the European Court of Human Rights and strengthening of the European Convention on Human Rights, which has been at the centre of our concerns for years. The Court is an essential element to the protection of human rights across Europe. But it faces different challenges, the main one probably being the large number of outdated and backlogged requests, over 155.000 of them. This gives a negative picture of our organisation as this issue undermines the effectiveness and credibility of the European Court of Human Rights.

We clearly need new ideas to deal with this situation. Just recently the Lord Chief Justice, Lord Judge, Head of the judiciary and President of the Courts of England and Wales, suggested to a parliamentary committee what he sees as a possible solution. He stated that the number of cases clogging up the system could be cut by "hundreds of thousands" if applicants were required to obtain permission to go to Strasbourg. Obviously such proposals would change the nature of the Court, whose principle is based on the right of appeal by each individual to Strasbourg. Therefore, all such proposals should be considered with extreme caution. However, the situation of the Court is such that in my opinion, we should be open to considering even different solutions.

In our Resolution 1726 the Assembly clearly indicated how it sees the essential elements of the reform: the need to strengthen the implementation of Convention rights at the national level; the improvement of the effectiveness of domestic remedies, and the need to rapidly and fully execute the judgments of the Court. The Assembly has also repeatedly stated that the authority of the Strasbourg Court depends on the stature of its judges and on the quality and coherence of the Court’s case law.

In this connection, we also count on the British Authorities to make progress as regards EU accession to the European Court of Human Rights. As you know, the Assembly has made its contribution to this accession: we reached an agreement on the participation modalities of the European Parliament representatives in the sittings of the Parliamentary Assembly and its relevant bodies when the Assembly elects judges to the European Court of Human Rights.

We obviously welcome the second priority – support the reform agenda of the Council of Europe carried out by the Secretary General Thorbjørn Jagland. We strongly support this reform which will focus on carrying out more efficient and focused use of resources. As you know we already approved a reform on the functioning of the Assembly which will enter in force on 23 January 2012, at the beginning of our next session.

The third priority is also of great importance - Internet Governance, including the freedom of expression on the Internet. We can see the significance and power of Internet in the political sphere in recent events such as the Arab Spring. National uprisings and protests were organised by the means of Internet, particularly through social networks, and it is in the interest of the Council of Europe to protect freedom of expression through all means of public communication.

The fourth priority is strengthening the rule of law. It is in our best interests to continue promoting the rule of law in our member states but also in neighbouring regions, and the United Kingdom has our full support in this task.

In this connection we look forward to close cooperation with the United Kingdom authorities on further development of the Council of Europe’s Neighbourhood Policy, both in Northern Africa and Central Asia. We have two new Partners for Democracy – parliaments of the Kingdom of Morocco and the Palestinian National Council; we are developing relations with Tunisia, Algeria, as well as with Kyrgyzstan and Kazakhstan. I am sure we will intensify our cooperation with the Committee of Ministers in this field even further.

Dear colleagues, ladies and gentlemen,

Thank you for your attention and let me now give the floor to the Rt. Honourable David Lidington MP, Minister for Europe.

Inside the jails home to Libya's 'enemies'

Inside the jails home to Libya's 'enemies'

Portia Walker reports from Zintan on how thousands accused of Gaddafi links are held illegally by militias in makeshift prisons

For four months, Ali Jumaa Tahir's parents had a funeral tent pitched outside their home in a small town 15km from Tripoli, as they mourned the son they thought had died fighting for Gaddafi.

It wasn't until October, when he was able to call them from a borrowed mobile phone lent by one of the guards in the makeshift prison where he is now detained, that they discovered their 36-year-old son was still alive.

Mr Tahir is just one of more than 7,000 "enemies of the state" believed to have "disappeared" in a dysfunctional system, according to a report by the UN Security General due to be released on Monday. Thousands of people, including women and children, it states, are reportedly being illegally detained by rebel militias in Libya where many are subject to torture, beatings and systematic mistreatment in private jails run by the Western-backed revolutionaries who now rule Libya.

In what was formerly a school in the small mountain town of Zintan – notorious as the place where Gaddafi's favoured son Saif al-Islam is being held – 162 men are crammed into a single-storey building, held by the rebels who now run the city. "All of them were in the war," said Abdul Rahman Mohammed, Zintan's general prosecutor, as he fielded phone calls behind a vast desk in his office inside the prison.

The windows have been bricked up and the men there say they are allowed out for exercise once a week. Many of the prisoners seen by The Independent were wasted and appeared to be suffering the ill effects of their sedentary lifestyle. Prisoners said that conditions had improved since the war had ended, but that they were still subject to regular beatings.

One of the captives, Hussein Abdullah Ashur, a 21-year-old from Chad, showed the wounds on his head and a cut on his chest from where he had been beaten with electricity cables after being captured. He said his nose had been broken when he was taken into captivity and demonstrated how he struggled to breathe.

"They beat them, then they say sorry. Everyone here has lost someone, some of the guards had their brothers die in the war," explained Mr Tahir, who spoke of the grim days after his capture in May when food was scarce and electricity had run out, not just in the prison but for the whole town of Zintan, as Gaddafi's forces laid siege to the city and blasted the road to neighbouring Tunisia with heavy rocket fire.

The men in the prison all denied having fired shots in the army. "I didn't do anything in this war, even one shot, nothing," Mr Ashur said. Others spoke of how they had been cajoled into fighting. "I am only a soldier. If they ask me to go to war, I can't refuse," said Massoud Mansour Kelane. "If I refuse or leave the war, maybe Gaddafi's forces would kill me."

The town's general prosecutor, Abdulrahman Mohammed, was supervising the prison. He said that at one point it had held more than 300 men but about 160 had been released and more would be if their innocence could be proven. "If they didn't do bad things like kill people, we release them. If the Libyan government released them all, we'd let them go," he said. "Except the killers. They will stay in prison all their lives or be killed by hanging."

Bashir Igna is a migrant worker from Mali who had been working near the town of Obari in the south of the country. He said he was rounded up and made to fight along with many other migrant workers from Mali. "I didn't like to go to the war, but if I didn't go to the war, they would kill me in Obari," he said. Prisoners who had been released were all Libyans, and the 50 or so foreigners held there had not been freed, he told The Independent.

The UN report states that sub-Saharan Africans constitute a large number of the detainees: "Cases have been reported of individuals being targeted because of the colour of their skin." The prisoners said that boys as young as 14 were being held there. When questioned, prison official denied this.

Prison authorities said the detention centre had been visited by Human Rights Watch and the International Committee of the Red Cross. All of the prisoners spoken to said they received adequate food and a number said that guards had given them cigarettes and lent their own mobile phones to allow the prisoners to talk to their families. But all of the captives were despondent about their situation.

"We have food. We have blankets," said Ashur. "We only want one thing – to go home."

Gaddafi's son's fingers 'were amputated'

A doctor treating Muammar Gaddafi's captive son, Saif al-Islam, says that his injured finger and thumb were gangrenous and needed to be amputated. But the Ukrainian doctor, Andrei Murakhovsky, told Reuters there was concern that Saif could be killed if he was taken to a hospital.

Saif has appeared on TV with a heavily bandaged right hand, leading to speculation that fighters had cut his fingers off. Dr Murakhovsky, however, said the wounds were consistent with blast trauma. "His index finger has been ripped off and the bones are all shattered," he said.

Mexican prisoners caught attempting to swim to freedom

Mexican prisoners caught attempting to swim to freedom

Six inmates from the last island penal colony in the Americas have been recaptured at sea after they used buoyant containers and wood planks to try to swim to freedom in an escape reminiscent of the 1973 movie Papillon.

The Mexican Navy said the inmates used empty plastic gas or water tanks to help stay afloat as they swam about 60 miles south of the Islas Marias, a Mexican penal colony where inmates live in small houses and are normally not locked up. Prisoners can tend small gardens to grow food.

The six men were only about 58 miles from the Pacific coast resort of Puerto Vallarta when they were spotted by a passing boat early Thursday. That vessel called a local naval base and patrol boats were quickly dispatched to take the men into custody. Photos provided by the Navy showed the men sunburnt but alert on the deck of the patrol vessel.

The men, who ranged in age from 28 to 39-years-old, were taken back to Puerto Vallarta for a medical check and to be turned over to the prison authorities.

Later, the Interior Department said the men had been found to be in acceptable health and would be returned "within hours".

The Pacific Ocean forms the main security barrier at the island. Dozens of prisoners are believed to have tried to escape since the colony was founded in 1905 but few, if any, are believed to have made it to the mainland.

Our Internet – Our rights, our freedoms

Our Internet – Our rights, our freedoms

Towards the Council of Europe strategy on Internet Governance 2012-2015
Vienna, 24 November 2011

Speech by Thorbjørn Jagland, Secretary General


The Internet is the greatest invention of our time.

But, how can we safeguard our freedoms and rights in a space everybody joins but nobody owns ?

To do so, we need vision and leadership. Our draft Council of Europe strategy aims at bringing our pan-European core values onto the global Internet platform.

In short, our vision is about “maximising the freedom and minimising the threats”.

Let me start with freedom.

First of all, access to the Internet must be accepted and respected as an integral part of everyone’s right to freedom of expression and access to information. If we cannot, or are not allowed, to access the Internet, our rights under the European Convention on Human Rights are at stake.

I believe that an excessive control of the activities of people on or through the Internet is not the answer. To do that is to reject freedom and democracy itself.

The Council of Europe, including the case-law of the European Court of Human Rights, has developed many standards on the rights of Internet users. Now we should bring these standards together in a user-friendly compendium of Internet rights.

Let me also mention freedom of expression and media freedom on the Internet, as guaranteed by Article 10 of the European Convention of Human Rights. Indeed the Internet plays an important role in enhancing the public’s access to news and facilitates the dissemination of information generally. States have therefore to create a regulatory framework to ensure effective protection of journalists’ freedom of expression on the Internet.

At the same time, the principles of responsible journalism, by verifying the accuracy of the published information, have to be applied in a more strict way by journalists on the Internet.

The right to have our data protected is another aspect of freedom on the Internet and one which is not without challenge.

Web pages, search requests, on-line forms, picture sharing or travel booking may have an influence on our right to private life and on the protection of our personal data.

The Council of Europe has, for over 30 years, been at the forefront of the protection of privacy.

Many actors from civil society, governments and the private sector are calling for global standards in the field of data protection. Countries worldwide can accede to our Convention on Data Protection.

But we have many challenges ahead: geo-location, profiling, ‘cloud computing’, biometric data, permanent tracking and open data, to name but a few.

In order to start meeting these challenges, we are now engaged in the modernisation of the Data Protection Convention. The process has already started and should be finished by the end of 2012.

Ladies and gentlemen,
Now, let me turn to threats.

When we talk about the opportunities of the Internet, we cannot ignore the threats and risks that come with its use.

We have witnessed how technology and the Internet can be used, as well as misused. No doubt, social media and the Internet played a major role during the Arab Spring, but - as a matter of fact - it also played a role during the riots in London and Rome.

A lesson learned after the tragic events in Norway on
22 July, is that extremists use and manipulate Internet sites to promulgate their views.

To a certain extent, they live in virtual parallel societies on the Internet – feeding each other with hate speech and political propaganda.


This cannot go on unchecked. From a security point of view, we need to follow the actions of these groups much more closely, to avoid similar incidents which occurred in Oslo and Utoya this summer from happening again.

The major threat that we need to address is cybercrime. Yesterday, in Strasbourg, we celebrated the 10th anniversary of the Budapest Convention on Cybercrime.

This treaty has indeed made a difference. We must look into ways to reinforce and broaden its impact.

The same goes for its Protocol on xenophobia and racism through computer systems adopted in 2003.

The Budapest Convention has already helped to harmonise legislation. Not only European countries, but also states worldwide have adopted laws in line with this Convention.

We are witnessing an increase in the number of investigations. In Germany, more than 27,000 cases of computer-related fraud were recorded in 2010 alone, leading to law enforcement investigations.



We are also witnessing increased international co-operation between the Parties - all of them have created points of contact for urgent
co-operation.

The Budapest Convention is a treaty which has proven to work. And it works because it does not operate in isolation.

It has proven to work because it is part of a multi-stakeholder approach where different organisations contribute with what they can do best. And it has proven to work because it is not about protecting machines but about protecting people and their rights.

However, cybercrime is still a major threat and therefore we need to increase our efforts.

The most effective way ahead is to ensure full implementation of what we have already agreed upon. A first step should be to ensure the ratification by all member states of the Council of Europe, but also to encourage accession by States from other regions of the world.

Before I close, let me say a few words about the particular situation of children and young people.



Today we stand at a cross-roads.

We have to ensure freedom of expression on the Internet and, at the same time, we have to protect our children’s rights.

We cannot accept child abuse images circulating on the Internet.

We cannot cater for the appetite of sexual predators by tolerating this.

We need to make sure that, together with other countries and regions of the world, with the industry and civil society organisations, we tackle this outrageous crime and this affront to human dignity within the framework of the rule of law and human rights.

Our children and young people must be able to safely play, learn, communicate and develop.

These new media environments, be they social networks, blogs, chats and messenger services offer big opportunities but also carry risks of violence, abuse, or exploitation. We all have a duty to protect our children and youngsters from harm online.

Dear friends,

There is no small print in the European Convention on Human Rights which says that it applies only offline.

The reality is however that offline, human rights are protected through national courts as well as, for the European continent, the European Court of Human Rights.

Online, it is much more difficult to protect them, as there are no borders for the Internet. To ensure that human rights are protected online as well as offline, we need to think and act globally, beyond the borders of Europe. And we need to work together, with all stakeholders, towards a common understanding of how best to protect human rights in a globalized and online Internet environment.

We need a sustainable life-long approach for the Internet to shape the world we live in. The draft strategy is an important contribution from our pan-European region to this global issue.

Thank you for your attention.

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

Hirst v Executive, Parliament and Judiciary (case no.1KH04685)

In response to the District Judge's Order dated 10 October 2011, I supplied the County Court with the required information it sought. Because the official forms do not have sufficient space in the boxes to include all the information I included it on 2 separate pieces of paper.

It beggars belief that 6 weeks on I am again being asked to supply the relevant information! If it is not corrupt judges it is incompetent judges the poor litigant in person has to contend with!

The constitutional, innovative face of South African law

The constitutional, innovative face of South African law

Judgments based on a bill of rights that often favour the poor can override common law, helping to rebuild trust in the system

Foreign visitors expecting to see the sort of neoclassical facade that is traditionally said to embody the authority, certainty and stylistic formality of modern law, must find the South African constitutional court building in Johannesburg a rather odd sight.

Erected on the site of a notorious prison where famous figures such as Mahatma Gandhi, Albert Luthuli and Nelson Mandela were once incarcerated, and incorporating aspects of the original prison (including some of its bricks) in its design, the facade of the building announces its purpose in colourful and informal lettering in all 11 of South Africa's official languages.

The foyer is a spacious, light-filled area with slanting columns jutting out at unexpected angles: an architectural metaphor for trees under which African villagers traditionally resolved disputes. The building itself is a metaphor for the constitution adopted in 1996, whose innovative and sometimes daring provisions are interpreted and fleshed out by the 11 judges of the court, always sitting en banc.

The constitution – which abolished the colonial-inspired system of parliamentary supremacy and established a constitutional democracy with a justiciable bill of rights – is both backward-looking and forward-looking.

It seeks to give legitimacy to (and build on) those aspects of the previous legal order not utterly discredited by the apartheid past and hence confirms that the basic principles of the Roman Dutch and English common law (which applied in the apartheid years) would continue to find application within a new democratic system. Thus, the constitution ensures, to some degree at least, the kind of legal continuity and certainty that traditional common law lawyers are often said to value above all else.

However, it is also said to be a transformative document aimed at facilitating a change in the legal culture as well as in the material conditions of the population of South Africa. In judgments by the constitutional court, in the extra-curial writings of former and present constitutional court judges and in the work of progressive legal academics, the virtues of the "transformative" aspects of the constitution are often praised.

Potentially, one of the most "transformative" (and forward-looking) aspects relates to the application of the bill of rights. The constitution enjoins every court, tribunal or forum in South Africa to "promote the spirit, purport and objects of the bill of rights" when "interpreting any legislation, and when developing the common law or the customary law" (the latter being a system of indigenous law under which many South Africans living in rural areas still function).

The constitutional court relied on this provision to liberalise the common law on defamation, making it far more difficult for a plaintiff to sue a newspaper for libel. It did so by invoking the freedom of expression provision in the bill of rights which, argued the court, required less invasive libel laws than those developed by judges as part of the common law.

Similarly, the constitutional court extended the grounds upon which a citizen may sue the government for delictual damages resulting from negligence by the police officers or other officials in the criminal justice system, invoking the right to bodily integrity to justify this move. First tentative steps have also been made to "transform" the traditional common law rules of the law of contract in order to protect the weaker contractual party in any contractual dispute.

Unlike most traditional human rights charters, the bill of rights binds not only the state but, in many cases, also private individuals and institutions. This means that a private citizen would often be able to invoke its provisions against another private citizen, organisation or big corporation.

This provision is based on the assumption that big corporations such as banks and other powerful individuals such as private landlords, wield enormous (and often destructive) power in a modern state. Human rights abuses are therefore not only (or not even primarily) perpetrated by the state and in order to protect the marginalised and vulnerable the bill of rights cannot merely impose duties on the state. Private individuals and institutions often discriminate against individuals, invade their privacy, treat them without dignity or respect or act against their basic economic and social interests and when they do, the individual can approach the courts to have their rights vindicated.

Traditional lawyers have been critical of some of the "transformative" rulings of the constitutional court, arguing that the pure and beautiful logic that underlies the traditional common law rules are being undermined in a mad bout of political correctness and that free enterprise and commerce are being hamstrung by imposing onerous duties on private citizens and companies that limit their freedom to act and to take commercial risks.

However, in a country in which the law used to be deployed as an instrument of racial oppression, the transformative and pro-poor judgments of the constitutional court are arguably helping to rebuild trust in the legal system and promoting the legitimacy of the law – surely a prerequisite for the proper functioning of a society emerging from a period of lawlessness.

• This is the first of three articles about the South African bill of rights by Pierre de Vos

UK's hypocrisy on human rights exposed

UK's hypocrisy on human rights exposed

From the Independent...

Libya told to end human rights abuses

Britain yesterday renewed its call on the new Libyan government to stamp out alleged human rights abuses following the revelation that thousands of people are being illegally detained.

From the Guardian...

MoD's resistance to human rights in Iraq blamed for death of Baha Mousa

Ex-legal adviser Nicholas Mercer accuses ministry of moral ambivalence and cultural resistance to human rights

Thieves break in to prison and steal cigarettes

Thieves break in to prison and steal cigarettes

Burglars enter storage area at HMP Kirkham in Lancashire and make off with £8,000 worth of tobacco

Raiders have broken into a prison and made off with a haul of cigarettes.

The thieves entered a storage area at HMP Kirkham near Preston, Lancashire, where they stole £8,000-worth of tobacco.

A spokeswoman for Lancashire police said: "We can confirm that we are looking into a report of a theft of a large quantity of tobacco after an outbuilding within Kirkham prison was broken into earlier this month.

"An investigation is ongoing and officers are reviewing CCTV footage."

The burglary at the category D jail, which houses up to 590 inmates, took place on 5 November.

The former RAF training centre opened as a prison in 1962.

British judge slams UK 'xenophobia'

British judge slams UK 'xenophobia'

Sir Nicolas Bratza criticises hostility of senior government figures towards European Convention on Human Rights

Britain's most powerful judge has publicly complained about "senior members" of the UK government fostering hostility towards the European Convention on Human Rights.

Citing the "vitriolic" and "xenophobic fury" directed against judges on the European Court of Human Rights, Sir Nicolas Bratza has acknowledged that relations between Strasbourg and the supreme court in London are under "strain".

Sir Nicolas, the UK's own nominee on the court and currently its president, made his comments at a conference earlier this year but they have only recently been published in a law journal. The paper has been referred to approvingly several times this month by supreme court judges.

Circulation of the full text of Bratza's "personal views" comes as the British government takes on the rotating chairmanship of the Council of Europe, which oversees the ECHR. The government has pledged to reform its practices.

Ministers have highlighted the massive backlog of cases building up in Strasbourg and implied that the "margin of appreciation" allowed to each country in interpreting the human rights convention in different national ways is too narrow.

The attorney general, Dominic Grieve, has also promoted the notion of legal "subsidiarity",particularly over the disputed issue of prisoners' voting rights, arguing that sensitive issues of social policy should be decided by national parliaments. The justice secretary, Ken Clarke, has questioned whether "every individual" should be allowed to appeal to the ECHR on deportation cases.

Last week the government convened a special conference at Wilton Park, the foreign office conference centre in Sussex, to "initiate" what a spokesman said was "a process of strategic thinking about the future role of the [European Court of Human Rights], to ensure its sustainable functioning in the long term". The FCO statement added that: "Participants will be encouraged to think creatively about the long-term future of the court."

Bratza's detailed examination of the relationship between the UK and the Strasbourg court was written before the Wilton Park conference and before the attorney general set out the government's reform agenda.

The president of the ECHR clearly intended that his comments should soothe the strained relationship but his definition of what lies within the remit of the Strasbourg is unlikely to be welcomed by many ministers.

"The scale and tone of the current hostility directed towards the [ECHR] and the convention system as a whole, by the press, by members of the Westminster parliament and by senior members of the government has created understandable dismay and resentment among the judges in Strasbourg," Bratza wrote.

"The vitriolic – and I am afraid to say, xenophobic – fury directed against the judges of my court is unprecedented in my experience, as someone who has been involved with the convention system for over 40 years."

Bratza stressed that many landmark decision by UK courts had been adopted by the ECHR as significant precedents and pointed out that in 2010 there were 1,200 applications from the UK considered by the ECHR of which 1,177 were struck out or deemed inadmissable. Of the remaining 23 cases, "several ended in findings of no violation" by UK authorities.

There should be closer dialogue between the Strasbourg and the UK's supreme court, he added. The ECHR should, he conceded, "show greater awareness of the consequences of its judgments" on domestic laws across Europe and "strive for greater clarity" in their judgments.

"But," Bratza continued, "the fact remains that we do not always agree with the supreme court or they with us and it is this which has sometimes put the relationship between the national courts and Strasbourg under strain.

"It is these cases which have given rise to the principal criticisms made against my court: that we too often sit as a court of fourth instance and pay insufficient regard to the principle of subsidiarity; that we cannot resist the temptation of deciding matters which properly fall within the margin of appreciation of a state; and that we are not sufficiently sensitive to national traditions and well-established laws and practices within a particular society.

"As an overall assessment of our court's work, I have to say that I do not find the criticisms to be fair ones."Bratza takes issue with the apparently resentful epigram coined by the late supreme court justice Lord Rodger: "Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed". (Argentoratum was the Roman name for Strasbourg).

Bratza said: "Brilliantly Latinised as was the sentence... [this] is not the way which I or my fellow view the respective roles of the two courts.. " Although, he added, it was "important" in that case that the House of Lords should follow the ECHR decision.

Prisons chief: jails must stop being 'Victorian warehouses'

Prisons chief: jails must stop being 'Victorian warehouses'

Nick Hardwick was appalled by conditions at some jails, where inmates still had to slop out at night

Inmates are being left to languish in Britain's crowded prisons because no effort is being made to address the problems that put them there, the Chief Inspector of Prisons has told The Independent.

Nick Hardwick warned that short-term inmates are getting locked into a cycle of crime because the official attitude is to "whack them all in this kind of Victorian warehouse" without making any attempt to retrain them.

The August riots helped drive prison numbers past 88,000 in England and Wales, a record high. Only 1,200 places remain available. Britain's prison population is the largest in the EU and its re-offending rates are among Europe's highest. Ken Clarke, the Justice Secretary, has called the situation a "national scandal".

Mr Hardwick said conditions were still "disgusting" at some prisons, citing inmates at one high-security prison – Long Lartin in Worcestershire – who had to slop out at night. He said he had assumed, before he took on the job last year, that more would be done to work with offenders to reduce the chances that they would commit more crimes.

"For all those young guys doing sentences of a few months, nothing much happens that's going to affect what [they] do when [they] come out," said Mr Hardwick. "You will see some people who are just opting out and sleeping their way through their sentences."

Mr Clarke has called for a "rehabilitation revolution" but prison officers say their work has been set back by a lack of investment, and a surge in prison sentences. Figures released last year by the Ministry of Justice showed that 14 prisons – mostly for short-term prisoners – had re-offending rates of more than 70 per cent. Mr Clarke has introduced a system of payment by results for private prison companies if they can cut re-offending rates.

But Mr Hardwick said that prisons needed to "raise their game". He said it was no good "whacking prisoners in this kind of Victorian warehouse and saying it's the prisons' job to sort things out." The sharp rise in numbers after the August riots was directly linked to a disturbance in one institution as young offenders were moved round the system and clashed with rival gangs.

The Government has maintained that the system can cope with numbers, but Mr Hardwick said the question of how many bunks could be fitted into a prison was "missing the point".

"There is an opportunity for people who have had very chaotic lives, when they are in prison not just to learn skills but to get habits and experience of a normal day. It's a shame if that opportunity is missed."

A Ministry of Justice spokesman said short sentences remained an important option for the courts: "We are making prisons places of hard work – not idleness – that properly address the underlying causes of crime, such as drugs and chaotic lifestyles."

THE ACCESSION OF THE EUROPEAN UNION TO THE ECHR: A GIFT FOR THE ECHR’S 60TH ANNIVERSARY OR AN UNWELCOME INTRUDER AT THE PARTY?

THE ACCESSION OF THE EUROPEAN UNION TO THE ECHR: A GIFT FOR THE ECHR’S 60TH ANNIVERSARY OR AN UNWELCOME INTRUDER AT THE PARTY?

THE ACCESSION OF THE EUROPEAN UNION TO THE ECHR: A GIFT FOR THE ECHR’S 60TH ANNIVERSARY OR AN UNWELCOME INT...

Michael Howard: He lied, and lied and lied!

Michael Howard: He lied, and lied and lied!

It is only because Michael Howard is Jewish that he would not have been a Camp Commandant at Auschwitz during World War 2. However this would not have prevented him from being a Capo doing Hitler's dirty work for him.

Michael Howard: Parliament must redefine human rights

Britain’s courts should be stopped from slavishly following Strasbourg’s rulings.

THE DRAFTERS OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Middle row on the right Charles Dukes (United Kingdom).

What part of universal human rights does Michael Howard fail to understand? The UK chose not to opt out of the universality in favour of British human rights. The European Convention on Human Rights (ECHR) drew upon the UDHR for inspiration. Once again the UK did not opt out in favour of British human rights. And, once again the UK was involved in the drafting of the ECHR. What part of the ECHR does Michael Howard fail to understand?

According to Michael Howard: "The argument is not about human rights, to which we all subscribe...No, the argument today is whether arrangements such as the European Convention on Human Rights and the Human Rights Act actually help to protect such rights or, by the way in which they have been operated, tend to bring the concept into disrepute".

Michael Howard is being disingenuous to claim that the argument is not about human rights. He is also being disingenuous by failing to state that previously as a MP and presently as a member of the House of Lords he is guilty of not honouring the UK's obligations to implement human rights and provide for an effective remedy for their abuse before a national authority. It follows that he is not being truthful when he claims to suscribe to human rights.

Liar Gerry McCann to appear before the Leveson Inquiry

Liar Gerry McCann to appear before the Leveson Inquiry

Leveson inquiry: father of missing Madeleine McCann to give evidence

The father of missing Madeleine McCann will join alleged victims of media intrusion in giving evidence to the Leveson Inquiry as he tells how global press attention had a negative effect on his family.

It is hypocritical of Gerry McCann to ride the media tiger and then complain about the media attention. Moreover, the fact that Gerry and Kate McCann are responsible for the death and disposal of Madeleine's body had a negative effect on the family.

The only evidence Gerry McCann should give is why did they claim that there had been a break in at Apartment 5A? This casts serious doubt on their claims about an abductor and an abduction. If the Leveson Inquiry is about a search for the truth, it gets no credit for allowing this liar a public platform.

Iraqi prisoners win court battle for inquiry into mistreatment claims

Iraqi prisoners win court battle for inquiry into mistreatment claims

UK military faces judge-led inquiry into detentions and interrogations after appeal court rules in favour of 140 Iraqis

More than 140 Iraqis who were imprisoned by British troops in the years following the 2003 invasion have won a court of appeal battle for a public inquiry into their allegations that they were subjected to serious mistreatment.

Lawyers for the men successfully argued that a Ministry of Defence investigation now underway was substantially compromised because some of its investigators served with a military police unit responsible for their detention.

The decision could pave the way for a full public inquiry into the British military's detention and interrogation practices in south-eastern Iraq during the five years that troops were based there.

A previous inquiry into one detention operation that led to several men being tortured and one, Baha Mousa, dying after suffering 93 separate injuries, concluded that there was "more than a hint" that such mistreatment of detainees was more widespread among British army units in Iraq.

The MoD has accepted that the Iraqis who brought the appeal – most of whom were civilians – have an arguable claim that they were tortured or suffered other forms of inhumane treatment, and that this may have been in breach of the European Convention on Human Rights.

The court ruled on Tuesday that the defence secretary, Philip Hammond, must now find a way of meeting the government's obligations under the convention, which demands an impartial investigation of any systemic aspects of abuse.

An MoD spokesman said: "We note that the court of appeal has not ordered a public inquiry but has asked the defence secretary to reconsider how to meet the investigative obligations. We will examine the judgment very carefully and consider next steps."

The MoD has until the end of the month to lodge an appeal with the supreme court.

The Iraqi men's solicitors, led by Phil Shiner, a Birmingham based human rights lawyer, documented more than 60 allegations of detainees being hooded, 11 of electric shocks, more than 120 of sound deprivation through the use of earmuffs, more than 50 of sleep deprivation, 160 of sight deprivation - including 117 using blackened goggles - more than 130 of the use of stress positions, 39 of enforced nakedness and 18 that detainees were kept awake by pornographic DVDs played on laptops.

Many of the allegations centre on a secretive army Intelligence Corps interrogation centre known as the Joint Forward Interrogation Team (JFIT), where suspected insurgents or men thought to be loyal to Saddam Hussein's deposed regime were taken for questioning. Other allegations relate to detention facilities used by other military formations.

Some of the events at JFIT were captured on video after senior officers ordered in 2005 that interrogation sessions should be recorded. More than 2,500 videos are thought to have been recorded, and at least three interrogators have now been referred to military prosecutors with a recommendation that they consider war crimes charges.

There is some evidence that years after the death of Baha Mousa, JFIT was still training military interrogators in abusive techniques, including some that were in breach of the Geneva Convention.

In March last year, in the face of a legal challenge that threatened to result in the MoD being forced to mount a major public inquiry, the department established a group of investigators in what is known as the Iraq Historic Allegations Team (IHAT).

The group, which is currently around 80 strong, is investigating a number of unexplained deaths in British military custody, as well as the torture allegations.

Around half are retired former civilian detectives, led by the former head of Staffordshire CID Geoff White. Around half, however, are members of the Royal Military Police, including members of a unit called the Provost Branch, which had been involved in detaining prisoners in Iraq.

The court said this meant that "Provost Branch members are investigating allegations which necessarily include the possibility of culpable acts or omissions on the part of Provost Branch members". Lord Justice Maurice Kay, the vice-president of the court of appeal's civil division, sitting with Lord Justice Sullivan and Lord Justice Pitchford ruled that as a result "the practical independence of IHAT is, at least as a matter of reasonable perception, substantially compromised".

Furthermore, IHAT answers to a panel that is headed by a senior MoD civil servant and includes individuals responsible for army discipline, and which is itself compromised, according to the court. "It comprises representatives of the three bodies – the Ministry of Defence, the army chain of command and the Provost Branch – which would be vulnerable to criticism if the case on systemic abuse is established."

Defence officials say the judgment has thrown into doubt the entire future of the military police, and that any future investigation into any allegation of abuse by British troops - in Afghanistan or elsewhere - will need to be carried out by another body.

The MoD is considering whether it can respond to the appeal court's judgment by reconstituting IHAT without any military police members.

However, if the future of the Royal Military Police, and the provost branches of all three of the armed forces were at stake, then it would appeal.

Shiner insisted that the only proper response would be a judicial inquiry into the UK's detention policy in south-east Iraq. "It is something we have been calling for since 2004," he said. "The MoD has deployed every dirty trick in the book to prevent accountability for the hundreds of torture and unlawful killings cases of Iraqi civilians. Now it has nowhere to hide."

Redress, a London-based NGO which helps victims of torture worldwide, was one of the interveners in the case and said the government would now have to decide how to comply with the need for an inquiry "which is independent, effective and reasonably prompt".

In a reference to the government's plans to introduce legislation that would result in evidence of the state's involvement in torture being heard by the courts only when sitting in secret, Shami Chakrabarti, the director of Liberty, said: "Yet again victims of torture look to our open and independent court system for answers and hope that others won't have to suffer in the future. British courts are admired the world over. The government should be proud of this and wary of doing anything that makes justice less transparent in national security cases."

Another public inquiry, which has still to get under way, is to look at allegations that up to 20 Iraqis were unlawfully killed or mistreated during one night in a detention facility in May 2004 - an allegation that the MoD denies.

Guaranteeing the authority and effectiveness of the European Convention on Human Rights

Guaranteeing the authority and effectiveness of the European Convention on Human Rights

Guaranteeing the authority and effectiveness of the European Convention on Human Rights

Kenny MacAskill to visit overcrowded Barlinnie jail

Kenny MacAskill to visit overcrowded Barlinnie jail

Justice Secretary Kenny MacAskill is to visit Barlinnie Prison to witness overcrowding problems first hand.

A recent HMIP report into Scotland's largest jail found it was more than 50% over capacity, with about 500 inmates more than it was designed for.

Chief inspector of prisons, Brigadier Hugh Monro, said this meant it could not be regarded as "safe".

Mr MacAskill said the Scottish government was committed to tackling the rising prison population.

In his inspection report, Brig Monro said the number of remand prisoners at Barlinnie had risen by 28% since 2009, compared with an increase of just 5% in the overall prison population.

He has called for a review into why so many men who have not yet faced a trial are held in Barlinnie.

'Reduce reoffending'

Speaking ahead of his visit, Mr MacAskill said: "We are committed to tackling the rising prison population and have taken a number of steps to reverse the trend.

"We acted in the last parliament and secured a parliamentary majority to tackle the problem of ineffective very short prison sentences and taken forward wider work to reduce reoffending but it's clear that more needs to be done.

"We are continuing to invest in improving the whole prison estate and delivering two new prisons - HMP Low Moss and HMP Grampian - alongside the ongoing redevelopment of HMP Shotts."

The justice secretary said this would help relieve some of the overcrowding pressures faced at Barlinnie and the wider prison estate.

"Crime is going down in this country and is now at its lowest level for 35 years," Mr MacAskill added.

"I am determined to seeing this translate into a reduction in overcrowding as we build a prison service fit for the 21st Century."

Government to apologise to Alder family over police cell death

Government to apologise to Alder family over police cell death

'Unilateral declaration' made by UK to European court of human rights is highly unusual admission of failures in investigation

The government will formally apologise through the European court of human rights (ECHR) to the family of Christopher Alder, a black ex-soldier who choked to death in handcuffs on the floor of a Hull police station 13 years ago.

The "unilateral declaration" made by the United Kingdom to the court is a highly unusual admission of widespread failures in the investigation into the cause of the Falklands veteran's death.

In its statement to the ECHR, the government will concede that it breached its obligations in regard to preserving life and ensuring that no one is subjected to inhuman or degrading treatment. The family is to receive €34,000 (£29,000) from the government in an ex gratia payment and to cover legal costs.

The unusual step of issuing a statement of that sort is a form of settlement and invites the court to strike out the case. The government had fought not to have the case heard in Strasbourg, before lodging an official statement and apology to the Alder family. Its apology is on behalf of Humberside police.

The text of the apology states: "The government of the United Kingdom regrets the occurrence of the actions which have led to the bringing of the present application, in particular the treatment in custody of the applicant's brother, Mr Christopher Alder, and the anguish that this treatment and his death have caused to his family."

"The government accepts that the lack of an effective and independent investigation in this case constitutes a violation of the procedural obligations in articles 2 and 3 of the Convention. Further, the government accept that the treatment that the applicant's brother received in police custody amounted to a substantive violation of article 3 with 14 of the Convention."

Earlier this month it emerged that Alder's body had mistakenly been left in a mortuary for 11 years after his family believed they had buried him.

His death in April 1998 was one of the most controversial in police custody. Closed-circuit TV footage was recovered showing the 37-year-old father-of-two gasping for air as officers chatted and joked around him. The film showed he received no help from five police officers, who thought he was play acting, as he lost his fight for life. It took 11 minutes for him to stop breathing. Afterwards, as Alder lay dead, monkey-like noises were detected on the audio tape.

After an inquest lasting seven weeks, a jury returned a verdict of unlawful killing, citing "positional asphyxia". Five police officers were prosecuted for manslaughter but the trial was halted when the judge ruled there was no evidence for a conviction. They were later cleared by a police disciplinary hearing of neglect of duty.

Janet Alder, the dead man's sister, said: "It has taken 13 years to break through what I see as a reluctance of the organisations dealing with controversial custody deaths to hold police officers accountable, or to believe or consider whether police officers could be capable of severe maltreatment of citizens within their custody."

"Why or where did Christopher sustain the additional injuries he suffered? Why was another of his teeth missing? Where was his belt? These concerns have never been investigated or addressed.

"It has taken bringing an action in the European Court of Human Rights – and judges there unanimously acknowledging my complaints were admissible after watching the horrific video of Christopher's death - to force the government to apologise for failing to hold the officers responsible accountable.

"It wasn't hard to see that my brother – an ex-paratrooper decorated for his services – was denied his right to life; that his treatment was inhuman and degrading and that race played a part in his death."

Welcoming the UK's declaration, the human rights organisation Liberty, which has supported the Alder family, said: "The government's unprecedented apology and admission of blatant violations of fundamental human rights are hugely significant and certainly not before time.

Corinna Ferguson, the legal officer for Liberty, added: "More than 13 years on still no one in the police has been held responsible for Christopher's shocking death. Proper accountability is vital in these situations and in future the Independent Police Complaints Commission must take stronger, more decisive action where serious human rights violations occur.

"The offence of misconduct in public office is completely inadequate in these circumstances – as demonstrated by the fact that these officers were somehow cleared of it. Sadly admissions and apologies will matter little if such tragic cases keep occurring."

Extent of injuries to children in private jails revealed

Extent of injuries to children in private jails revealed

Serious injuries detected on 285 occasions when children have been restrained in privately run jails over the past five years

Serious injuries or other life-threatening warning signs have been detected on 285 occasions when children have been physically restrained in privately run jails over the past five years, according to Ministry of Justice figures.

The figure reflects the number of "exception reports" submitted by the four privately run secure training centres to the youth justice board since 2006.

The warning signs triggering an exception report include struggling to breathe, nausea, vomiting, limpness and abnormal redness to the face.

Serious injuries are classified as those requiring hospitalisation and include serious cuts, fractures, concussion, loss of consciousness and damage to internal organs.

The MoJ figures, which have been disclosed for the first time, show that there were 61 such exception reports made last year. There have been 29 so far in the first 10 months of this year.

Their disclosure comes as a two-day High Court challenge is due to get underway over the MoJ's refusal to identify and trace hundreds of children who have been unlawfully restrained in the privately run child jails using techniques that have since been banned. Children's rights campaigners believe they should be entitled to compensation.

The Children's Rights Alliance for England (Crae) has brought the case challenging the justice secretary, Ken Clarke's, refusal to contact former detainees dating back to 1998, when the first secure training centre opened. The legal challenge follows a second inquest earlier this year into the death of 14-year-old Adam Rickwood, who was found hanging in his room at Hassockfield Secure Training Centre, where he was on remand in 2006. It concluded there was a serious system failure which gave rise to an unlawful regime at the child jail.

The use of several "distraction" restraint techniques, that involved inflicting pain with a severe blow to the nose or ribs, or by pulling back a child's thumb, were banned in 2008. The use of physical restraint techniques to control teenagers simply for the purposes of "good order and discipline" was also ruled unlawful by the court of appeal.

Carolyne Willow, Crae's national co-ordinator, said their lawyers will argue there had been a chronic failure by the authorities to protect vulnerable children over many years.

"It was not children's responsibility to know about, challenge and stop unlawful and abusive treatment," said Willow, adding there were potentially thousands of former detainees who should now be contacted.

"Children in custody are among the most disadvantaged in society and they were held in closed institutions where unlawful restraint was routine and ordinary. It was the state, and the private contractors, who were duty-bound to protect the welfare and rights of vulnerable children."

She said that government officials now had a duty to notify potential victims that their rights had been infringed. The abuses should no longer remain hidden and unchallenged.

The security company, G4S, which operates three of the four child jails is also joining the case as an 'interested party'.

The MoJ has maintained that it has no duty to notify former detainees and insisted that safety of young people in custody has always been its highest priority. The MoJ has previously said that restraint is only ever used as a last resort when young people put themselves or other people's safety at risk.

The justice minister, Lord McNally, has told peers that the 285 exception reports since 2006 were submitted by secure training centres if any warning signs or serious injuries were detected during or following the use of physical control in care - as the current system of restraint is called.

He said they were used to gather evidence and enable the incident to be reviewed by the youth justice board to identify ways of improving the safety and efficacy of restraint methods.

The exception reports are passed to a panel, which includes medical experts, who consider every case and are able to report to ministers any significant issues, said Lord McNally.

Oddly, Texas can teach the UK a thing or two on criminal justice

Oddly, Texas can teach the UK a thing or two on criminal justice

Conservative Texas prides itself on being tough, but it has learned that locking people up is a costly failure

Ian Birrell
guardian.co.uk, Sunday 20 November 2011 21.30 GMT

Hang 'em high Texas is not the first place you might look for lessons in criminal justice. The lone star state prides itself onits toughness, with more executions and fewer bleeding hearts than elsewhere in America, the most hardline state in a nation that locks up more miscreants than anywhere else in the world. But it is the unlikely centre of a revolution in prison reform sweeping the US, overthrowing decades of failed polices and sterile debate driven by politicians scared of being seen as soft. The state has cut crime, costs and the numbers in jail to such an extent it has just shut a high-security prison for the first time in history.

What makes this prison revolt even more unexpected is that it is led by some of the most conservative figures in politics. They have decided – correctly – that an expensive prison system repeatedly locking up the same people is a sign of failure. As a result, they have endorsed policies traditionally seen as liberal to keep people out of jail.

The right in Britain should take note as our prison population hits record highs. Just as in this country, politicians in Texas were desperate to be seen as being tough on crime. There was reckless rhetoric and endless headline-grabbing legislation, including the ludicrous three-strikes law that led to life sentences for a third offence – even when that was stealing a slice of pizza.

Inevitably, prison populations and spending soared. The costs of incarceration rose fourfold in two decades. America now accounts for a quarter of all prisoners on the planet – and two-thirds of new inmates are recidivists.

Then Texas decided enough was enough. Four years ago, it was told to spend another $2bn on 17,332 new prison places. Instead, the state opted to invest in halfway houses to help those leaving prison and schemes to aid addicted and mentally ill offenders. Since then, taxpayers have saved a billion dollars, violent crime has fallen to its lowest level for three decades, and the right has seen the light on criminal justice. More than a dozen states have made similar moves, with some of the most doughty bastions of conservatism softening sentencing policies and shifting emphasis to treatment, training, early release and community-based punishments. A campaign called Right On Crime has been launched to promote the idea, supported by conservative standard-bearers such as Jeb Bush and Newt Gingrich.

The driving force was financial. But it makes perfect sense for the right. As the group's website says, turning law-breakers into law-abiding citizens should be a conservative priority because it advances public safety and the rule of law. The cause unites libertarians wanting to scale back the state, fiscal conservatives seeking to reduce spending, social conservatives concerned by family breakdown, and a religious right that believes in redemption.

Is it too much to hope for a similar outbreak of common sense in Britain? Among the biggest disappointments of the Blair and Brown governments was their pandering to the right on crime, with 28 criminal justice bills. The coalition has tried to adopt a more evidence-based approach, with an emphasis on rehabilitation and payment by results, but is wobbling in the face of fury on the backbenches and in the media.

Such is the hysteria that the sensible abandonment of cruel indeterminate sentencing had to be smuggled out last month under cover of tougher sentences for knife crimes. There was relief in Downing Street at the strategy's success – but they are still kicking around a keynote speech on crime by the prime minister already postponed for a year.

It is clear from several countries, notably Finland, that imprisonment has no impact on crime rates. Putting fewer people in prison means more money can be spent on more effective community-based punishments, which are often tougher than lying around stoned all day in prison. In the Netherlands this approach has been so successful prisons built in expectation of rising crime are being rented to Belgium.

Locking people up and throwing away the key is a costly failure. The alternatives are smart, not soft.

• This article was amended on 21 November 2011. An editing error led to the published version stating that Texas 'locks up more miscreants than anywhere else in the world'. This was supposed to be a reference to the United States itself and has now been corrected

Kenneth Clarke waffles on human rights reform

Kenneth Clarke waffles on human rights reform

Ministers on the brink of human rights reform, says Ken Clarke

Ministers are on the brink of securing historic reform of the European Court of Human Rights to stop it over-ruling British judges on immigration cases, Kenneth Clarke has disclosed.

Comment:

What we have here is a load of waffle. The ECtHR hears cases from individuals within Member States challenging human rights abuse, and Member States challenging Member States. At the Interlaken and Izmir conferences all 47 Member States agreed that the right of individual petition should remain, therefore it is highly unlikely that this will be reversed at the London conference.

Whilst it has been agreed that the ECtHR needs reform, it has also been agreed that those failing Member States, like the UK, must undergo reform. That Kenneth Clarke is silent on this aspect raises the question why?

It has been agreed that the Convention must be part of domestic law. The UK has not got any derogation therefore the UK must amend domestic law to incorporate Articles 1 and 13 which guarantees everybody in the UK is entitled to all the rights under the Convention, and an effective remedy for their breach before a national authority. So, whilst the Tories have been advocating that the HRA should be weakened the reality is that it must be strengthened.

It is unacceptable for the doctrine of the supremacy of Parliament to deny human rights and deny an effective remedy therefore the UK must adopt the European model of the sovereignty of the people. As it stands s.2 of the HRA is incompatible with the Convention. No longer will it be acceptable for the courts to abdicate responsibility by deferring to Parliament. For example, the Prisoners Votes Case highlighted that s.3 of ROPA 1983 is incompatible with Article 3 of the First protocol of the Convention. Europe is demanding that the primary legislation must be amended.

Europe is also demanding that the UK can no longer operate with its fusion of powers, it must adopt the European model of the separation of powers. This will allow the 3 arms of the state to provide the necessary balance and checks against abuse of powers. Until the UK instigates these reforms it will not escape being declared a failed state by Europe.

Lest we forget our troops died because MoD spent £600m of equipment budget on outside consultants and advisers!

Lest we forget our troops died because MoD spent £600m of equipment budget on outside consultants and advisers!

A report highlights a catalogue of flaws in the way defence contracts were awarded in breach of government guidelines.

The internal audit warns that control of the MoD’s funds appeared to be “poorly developed or non-existent” and that contracts were not adequately scrutinised before being approved.

Officials also made little or no effort to ensure that contracts provided value for money, the report concluded.

Since 2009, the MoD spent £564 million buying in "technical support" for teams running the department's biggest engineering and procurement projects.

61 is not old...

61 is not old...

Update:

Party tomorrow night when Arthur and Ilona come back from Poland. Lucy and Daniel gave me £40 for my birthday, and I spent £39 in Dove Hospice on two corner cabinets 2 x £10 @ which I was offered for £7.50 @ = £15. Very big mirror for the bedroom £20, and 2 x pink rose paintings to match my curtains £2 @.

Went to buy Jack Daniels at Nisa expecting to pay £21, special offer £16.99. Told Violetta, and she said she knows. She told Arthur to buy Jack Daniels in Poland for me and it cost £21!

Unexpected consequences

Unexpected consequences

Following on from this post, I never expected the dust cloud from stripping the walls and pulling down the ceiling would be like a fallout all around the house!

Is William Hague spooked by rendition 'allegations'?

Is William Hague spooked by rendition 'allegations'?

It's no coincidence Hague's effusive praise for secret services comes as an intelligence inquiry is to be held – in secret

Richard Norton-Taylor
guardian.co.uk, Thursday 17 November 2011 12.52 GMT

It was an unprecedented, and much under-reported, occasion. Never before had a British foreign secretary heaped so much praise, so publicly, on Britain's secret services.

Addressing an audience of the country's top securocrats, including the heads of MI6, MI5, and GCHQ, William Hague described their role as vital. British intelligence officers had saved lives, most recently in Libya, he said. Their dedication and professionalism had "few equals, and possibly no equals, among any of their counterparts".

So why did he feel the need to shower the country's spies and spooks with such approbation, so enthusiastically, even flamboyantly? There were plenty of clues in the speech he gave in the foreign office on Wednesday. "I know", he said, "that their values are the finest values of the United Kingdom." Yet, Hague added, their work threw up "some of the most difficult ethical and legal questions" he encountered as foreign secretary. He repeatedly stressed the need for "public confidence" in their work.

MI6 and MI5 have been shaken by the criticism, particularly in the Guardian – though not only here – of the involvement of British security and intelligence officers in the US practice of "extraordinary rendition", namely the secret and unlawful transporting of detainees to jails where they were abused and tortured.

Hague said in his speech that the "very making of these allegations undermined Britain's standing in the world as a country that upholds international law and abhors torture". The trouble is we are not talking about mere allegations. British involvement in activities leading to the abuse and torture of terror suspects and others, to Guantánamo Bay and elsewhere, is now well documented.

These facts came to light mainly as a result of persistent questions by some journalists and some MPs who refused to be thrown off the scent by officials and (mainly Labour) ministers. Ministers have since claimed they were not told by officials what was going on. Why else did the incoming coalition government last year feel obliged to publish "revised guidelines" for British intelligence officers, including those in the armed forces, interrogating detainees and suspects abroad?

Significantly, Hague repeatedly referred in his speech to ministerial accountability. He sees MI6 plans for secret operations every day, he said, "amounting to hundreds every year … I take ultimate responsibility for these operations, and I do not approve them all".

Yet when documents found in the files of Muammar Gaddafi's former intelligence chief, Moussa Koussa, showed that MI6 had been involved in the rendition of Libyans and their families to Gaddafi's jailers and torturers, ministers and former ministers (Labour and Conservative) ran for cover.

Usually impeccable Whitehall sources say that Britain was given assurances by Gaddafi's henchmen that those rendered – Sami al-Saadi and family and Abdel Hakim Belhaj – would not be tortured or ill-treated.

They also insist that MI6 got specific ministerial approval for the renditions. Jack Straw was foreign secretary at the time. Straw and everyone else – ministers, former ministers, and spooks alike – say they will not comment until they give evidence to the inquiry set up by the coalition government to look into the "allegations" of wrongdoing by MI6 and MI5.

The trouble is the inquiry, under Sir Peter Gibson, a former appeal court judge who was also an official "commissioner" responsible for monitoring the intelligence agencies, will hear all the information gathered by MI6 and MI5 in secret hearings. So how will the public know what the intelligence agencies were up to and whether ministers approved?

In an attempt to stop such revelations – or "allegations" as the government would have it – seeing the light of day again, the government has come up with proposals with the Orwellian title of "justice and security green paper". Under the proposals, no information gathered by the security or intelligence agencies would ever be disclosed in court. Instead, suitably vetted "special advocates" would see any "sensitive material" together with the judge sitting in private.

The green paper was triggered by high court and appeal court judges insisting that some CIA information passed to MI5 and MI6 about the treatment of the UK resident Binyam Mohamed who ended up at Guantánamo must be disclosed. The CIA was furious. In order to prevent evidence about what UK officials knew of the rendering of nine UK residents and citizens to the US detention centre on Cuba emerging in a later court case, the government – the taxpayer – awarded the former detainees millions of pounds in compensation in an out-of-court settlement.

Hague suggested that the green paper plan was designed "to achieve the proper administration of justice".

And it would ensure that evidence, as opposed to "allegations", of wrongdoing, would remain secret.

Is Jonathan Sumption an Executive poodle?

Is Jonathan Sumption an Executive poodle?

A criticism levelled at the US Supreme Court is that the judges are political appointees.

It has been said that the law is an ass. This is just an assumption, but could it just be the case that Jonathan Sumption QC's appointment to the UK Supreme Court is a political appointment? In other words, is he the first of the Executive's placings to pack the bench with the intention that the UKSC becomes the Executive poodle?

Jonathan Sumption has already spoken out against human rights and the courts and how they should decide in favour of the government.

The justice and security green paper is an attack on liberty

The justice and security green paper is an attack on liberty

Ministers' plans to extend their power to withhold evidence in civil proceedings will undermine ancient freedoms

Joshua Rozenberg
guardian.co.uk, Wednesday 16 November 2011 13.31 GMT

The foreign secretary is to endorse plans that will undermine a fundamental constitutional right: the right to open justice. As the Labour party is broadly supportive of the government's proposals, we can expect them to be approved by parliament next year.

William Hague may be right to argue that combating terrorism justifies changing the law and allowing some cases to be heard behind closed doors. What's essential, though, is that we should understand what we are doing and limit, as far as possible, the loss of our common law liberties.

These thoughts are prompted by the Atkin memorial lecture, delivered at the Reform club last week by Dinah Rose QC, and not yet published. Rose, one of the leading advocates of her generation in the field of judicial review and human rights, acted for Binyam Mohamed, a British resident detained by the US at Guantánamo Bay.

In response to a claim that the British government was complicit in his rendition, detention and torture, the government agreed, exactly a year ago, to settle Mohamed's case and compensate some 15 Guantánamo detainees. Although the figures are meant to be confidential, the government said last month that this had cost it £20m. Of this, Mohamed himself was reported to have received over £1m.

The claimants had to be paid off, according to the justice secretary, Ken Clarke, because the only way of defending the case would have been to disclose intelligence-related material to Mohamed and his fellow claimants. That could not be done without jeopardising the arrangements under which such material is shared with the US.

In July, the supreme court ruled by a majority of six to three that the government could not withhold evidence in a civil case without clear statutory authority; so that is what the government is now seeking.

In their justice and security green paper, published last month, ministers are proposing to extend what are called closed material procedures. Under these arrangements, the government does not disclose sensitive evidence to the other party or its legal team. Instead, the evidence is shown to the court and to a special advocate, an independent lawyer who has the challenge of representing the other side's interests without telling that side what the evidence says.

The government is proposing to make these closed material procedures available in all civil proceedings, not just those involving national security. The decision to withhold material damaging to the public interest would be taken by a minister. It could be challenged as unfair, irrational or disproportionate but, in line with the rules of judicial review, the courts would not be allowed to decide whether the government's decision was right.

This is quite different from the existing rules of public interest immunity, under which a judge must decide whether the public interest in withholding the evidence is outweighed by the public interest in the proper administration of justice. In such cases, material excluded cannot be relied on by either side, while material that is included must fully be disclosed by the government.

In one case 10 years ago, a compensation claim by a police informer had to be struck out because the court decided disclosure of police operational methods was not in the public interest. The government says cases such as these could be heard in future if closed material procedures were available.

But how many such cases are there? This is one of a number of pointed questions that the joint committee on human rights, a select committee made up of MPs and peers, has sent to the justice secretary. And how many other cases have had to be settled because the only way to have defended them would have been to disclose sensitive information?

Above all, the MPs and peers want to know why the government's proposals are drawn so widely. The green paper proposes (in paragraph 2.7) that closed material procedures would be available whenever a minister certified that "certain relevant sensitive material would cause damage to the public interest". That term is left vague but appears to cover international relations, crime prevention, police informers' identities and perhaps even commercially sensitive information in which the government has no direct interest.

Dinah Rose was scathing about the green paper's claim that a party's right to know the opposing case "will vary according to the circumstances". On the contrary, she said, it is a "very clearly defined common law right and a fundamental aspect of the adversarial trial". This had emerged clearly from the Binyam Mohamed case

She pointed out that one of the judges in that case, Lord Kerr, had rejected the "deceptively attractive" claim on which the government is basing its green paper: that it is fairer for the judge to consider all the evidence – even if one of the parties cannot see it – than to rule out part of the evidence on grounds of public interest immunity.

"To be truly valuable," Kerr said, "evidence must be capable of withstanding challenge. I go further: evidence which has been insulated from challenge may positively mislead."

Rose said the green paper had merely skated over some profound problems without even acknowledging that they existed. "A common law trial is designed to enable facts to be found on the balance of probabilities through an open adversarial process," she said. "If you bolt a closed procedure on to that, what you have is a process that is not adversarial, and not judicial. It may look and sound like a trial, but in fact it is nothing of the sort."

She thought the green paper had been greeted largely with indifference by those who saw it as a legitimate way of protecting the government from having to waste public money on terrorists.

"It troubles me," she concluded, "that the government can propose in this way, without any controversy and little fear of contradiction, to legislate for a secret process so alien to our judicial system."

No wonder the foreign secretary feels the need to speak out.

The government settled with Binyam Mohamed and his fellow former Guantánamo detainees rather than disclose evidence. Photograph: Shaun Curry/AFP/Getty Images