Happy New Year and all that...
I popped out to do some last minute shopping at Aldi, and take Rocky for a walk. Just as I was about to join a queue at a till, there was an incident at the front with a "customer" as the security man was wrestling him to the ground. He appeared to put up a struggle, and I heard the words "I'm a police officer" as a bloke assisted the security guard. I joined another queue which looked as though I would get served earlier. But, the bloke in front of the woman in front of me was clearly a skaghead out of his head. The till girl had to tell him to put his stuff out of the trolley onto the conveyor belt! Time dragged on, and on and on. Eventually he started to pay, but was £1.25 short and had to give back some chocolate. Then, another security guard asked to search his bag. She found some chocolate and confronted him with it. Just then the police arrived in response to the first incident, as the copper came in the security guard said "There's this one here and another in there".
Predictions for the New Year...
1 Prisoners will get the vote
2 Sinéad O'Connor will commit suicide
3 I will have a heart attack or a stroke
A mixture of law, politics, autobiography and humour. Once described as "The Devilish Advocate" (Guardian), I do have the ability to provoke a response. Sometimes it comes from someone who uses a thought process, and sometimes from jerks usually associated with the knee.
Saturday, December 31, 2011
Government faces claims from prisoners suffering delays to release
Government faces claims from prisoners suffering delays to release
Probation union says release of 6,000 inmates delayed as ministry staff shortages appear to add to pressure on prisons
The Ministry of Justice faces compensation claims running into millions of pounds from thousands of prisoners kept behind bars beyond their release dates because of delays in the criminal justice system.
Probation union says release of 6,000 inmates delayed as ministry staff shortages appear to add to pressure on prisons
The Ministry of Justice faces compensation claims running into millions of pounds from thousands of prisoners kept behind bars beyond their release dates because of delays in the criminal justice system.
Friday, December 30, 2011
David Lock sets record straight on Prisoners Voting Rights
David Lock sets record straight on Prisoners Voting Rights
Proposed restrictions in prisoner voting rights undermine the government’s commitment to human rights and the rule of law, warns barrister and former government minister.
Political pressure from all parties to restrict prisoner voting rights seems likely to bring the present government directly into conflict with the Council of Europe and the European Court of Human Rights, a former government minister has warned.
David Lock, who served as a junior minister in the Lord Chancellor’s Department in the last Labour government and now heads the public law team of barristers at No5 chambers, said today that watering down the right to vote would undermine the government’s commitment to human rights and the rule of law.
“Human rights exist to protect all, including minorities who may be unpopular with other sectors of society and who do not have the benefit of political power,” explained David.
“These rights are a legitimate check on the rule of the majority. In 2005 the European Court of Human Rights decided that, in principle, universal suffrage meant that convicted prisoners should not lose the right to vote. The government may not agree with that decision but its commitment to the rule of law and human rights means that it really cannot adopt a "pick and mix" approach” to court judgments, implementing the ones it agrees with and ignoring the ones it dislikes.
“Successive governments have committed themselves to both human rights and the rule of law and Britain's government has signed up to the European Convention of Human Rights. However, these statements only have value when the government has to consider difficult and unpopular cases.
“Giving prisoners the vote is politically difficult and unpopular, but the government should accept that it is bound by the decisions of the courts like everyone else.”
David Lock was Parliamentary Secretary, Lord Chancellor's Department (28 Jul 1999 to 7 Jun 2001).
Proposed restrictions in prisoner voting rights undermine the government’s commitment to human rights and the rule of law, warns barrister and former government minister.
Political pressure from all parties to restrict prisoner voting rights seems likely to bring the present government directly into conflict with the Council of Europe and the European Court of Human Rights, a former government minister has warned.
David Lock, who served as a junior minister in the Lord Chancellor’s Department in the last Labour government and now heads the public law team of barristers at No5 chambers, said today that watering down the right to vote would undermine the government’s commitment to human rights and the rule of law.
“Human rights exist to protect all, including minorities who may be unpopular with other sectors of society and who do not have the benefit of political power,” explained David.
“These rights are a legitimate check on the rule of the majority. In 2005 the European Court of Human Rights decided that, in principle, universal suffrage meant that convicted prisoners should not lose the right to vote. The government may not agree with that decision but its commitment to the rule of law and human rights means that it really cannot adopt a "pick and mix" approach” to court judgments, implementing the ones it agrees with and ignoring the ones it dislikes.
“Successive governments have committed themselves to both human rights and the rule of law and Britain's government has signed up to the European Convention of Human Rights. However, these statements only have value when the government has to consider difficult and unpopular cases.
“Giving prisoners the vote is politically difficult and unpopular, but the government should accept that it is bound by the decisions of the courts like everyone else.”
David Lock was Parliamentary Secretary, Lord Chancellor's Department (28 Jul 1999 to 7 Jun 2001).
Thursday, December 29, 2011
What's in a name?
What's in a name?
For as long as I can remember I have liked anagrams. I knew that Hirst is an anagram of shirt. Today I was interested to learn about Henry John Shirt who changed his name to Hirst.
For as long as I can remember I have liked anagrams. I knew that Hirst is an anagram of shirt. Today I was interested to learn about Henry John Shirt who changed his name to Hirst.
When convicts know the law inside out
When convicts know the law inside out
A lifer is running the only legal advice centre in a UK jail - from his own cell.
By Johnathan Green, Independent, Wednesday 08 May 1996
Behind the rolls of razor wire and insurmountable red brick walls of HM Prison Stocken, set in the heart of rural Leicestershire, is a cell in B wing crammed with legal documents. Bookshelves lining the walls groan under the weight of law volumes. Pinned to the cell door is a sign that reads "Prison Law Advice Centre" - this is the only legal centre within the UK prison system. It is also John Hirst's prison cell, where he serves a discretionary life sentence for manslaughter.
Hirst and his centre, which is not recognised by the Prison Service, have inspired such notoriety that he advises other prisoners who write in from all over the prison system. Not only that but, he claims, he also answers queries on penal law from solicitors and barristers too. In just five years he has turned himself from a "violent and disruptive" prisoner into a self-styled barrack- room lawyer. His legal record so far extends to 40 cases fought both within the Prison Service's internal judicial system and right up to the High Court.
"Before I would try and get my way with violence," he says. "But the guards are equipped to handle it and that is what they expect and understand. What scares them more than anything else, is the law - that they don't understand at all."
Hirst, a persistent offender from the age of 20, resulting in ever longer prison sentences, once had status as a "category A" prisoner because he was deemed such a risk to the public if he escaped. Now, though, this diminutive man with a raging intensity is more of a thorn in the side of the authorities than ever before. The transformation from "law breaker to law maker" began when he recovered pounds 300 in the county court for some vinyl records lost during a prison move.
And he recounts his most hard fought, successful legal victory with relish. It began when he was charged with an offence which "in any way offends against good order and discipline" while in Hull prison. His crime was to power a CD player by using two wires connected to a light fixture in his cell. The adjudication found against him and he was punished with a loss of privileges. Furthermore, he was also incarcerated in the punishment block for seven days. A subsequent complaint he lodged to a Prison Service area manager proved futile.
Undaunted and determined to see justice enacted, Hirst applied for judicial review in the High Court over his segregation and original charge. Then he lodged a second application when he was moved to Durham prison shortly afterwards, and again placed in the punishment block. The applications were successful and to pour salt on the wounds of the prison governors, he later won pounds 3000 compensation in a private action against the then governor of Durham prison.
John Hirst has now progressed to tackling all injustices brought to his attention within prison walls. His only fee is "a bit of money or maybe a bit of weed". But the rewards are far greater, he says. "I do it for justice. I am looked on as a right pain in the arse and that is the greatest compliment I could ever have."
Yet Hirst, 46, represents a growing number of jail-house lawyers who are finding law a better tool for asserting their rights in traditional prison violence. Rod Morgan, professor of criminal justice at Bristol University explains: "Recently there has been an explosion of prisoners' litigation and particularly prisoners pursuing civil claims. There is a growing awareness of prisoners' rights and they are more able to weigh up the options and pursue their own grievances."
No statistics are available on the phenomenon. However, Vicky King of the Prisoners' Advice Centre, a legal service for inmates, is astounded by how her caseload has rocketed since she set up the service in 1991. "We're getting busier and busier and have 700-800 cases on file," she explains. "There have always been prisoners who study criminal law and follow their cases and appeals and so on. But it is people like John Hirst and other lifers who pursue civil law actions that are becoming more common.
"Now we get calls from guys who have been inside for 16 years and say, 'I've never done this before but I really want to take a case up against the Prison Service. And many we speak to are aware of the power of judicial review and other legal terms," she says.
Many credit ex-prisoner Mark Leech, award-winning playwright and author of the Prisoners' Handbook, as a legally pioneering inmate. During a life in prison for a range of crimes including arson, he has taken out 42 actions ranging from county court level right up to the Court of Appeal. He once won pounds 110 damages for a prison officer's failure to answer his cell bell. And opened the way for more than pounds 1m for claims against the Home Office after challenging deductions from prisoners wages as unlawful.
"Prisoners are finding there is a better way forward on the floor of a court than protesting on a rooftop during a riot," he says. "Prisoners also know that they cannot be physically punished or beaten up for taking legal action and not fighting." Leech accounts for the rise in civil litigation, as do penal reform experts, by courts and judges becoming more willing to listen to prisoners cases. Tim Owen, a barrister who has spent the past 10 years involved in prisoners' rights and the law, says: "The attitude of the courts has changed and they see prisoners as citizens behind bars and that their civil rights should survive behind bars as well. Consequently, they are willing to set standards of procedure on things like transfer and segregation"
However, Leech's and Hirst's expertise is fashioned out of a difficult part of the law. Prison legislation is enshrined in the Prison Act 1952 and the secondary legislation in the Prison Rules 1964. Legal theory appears simple, but in day to day practice it is complex to interpret, says Vicky King. "It is a very murky area. It is only in the past few years that proper text books have started to appear on the topic. Before, very little was known." Prison law - Text and Materials, widely held to be the most authoritative text book on the subject, only appeared in 1993.
When he began his first action, Hirst called on six solicitors to help. They were so mystified by penal law only one agreed to assist with the case.
Prisoners like John Hirst are mainly self taught, particularly in penal law. The alternative is to turn to a correspondence course. Currently, there is an external law degree course by London University, tutored by Wolsey Hall in Oxford. And some prisons will run law courses when demand from prisoners is sufficient.
Yet the benefits of penal law study and then employing what has been learnt can be psychological too, says John Staples, editor of the Prison Service Journal and governor of HM Prison Full Sutton. "It has always been a way of adapting to the deprivations that prison brings. There are always a number in every prison who do things in a very legalistic way with complaints and requests."
However, Hirst is swift to rebut these claims in his eagerness to show how much his new found calling means. He says: "I would forgo my right to leave here if I had to stop studying and practising law." Future aims are to set up a legal advice centre on his release and to carry on with his work for prisoners' rights. His release, though, will be decided by a Discretionary Lifer Panel. "They may very well say that I have aggravated everything by always suing them. But I will still carry on if it means my release is postponed. It's about principles."
This is an abridged version of an article which first appeared in the Sunday Times
A lifer is running the only legal advice centre in a UK jail - from his own cell.
By Johnathan Green, Independent, Wednesday 08 May 1996
Behind the rolls of razor wire and insurmountable red brick walls of HM Prison Stocken, set in the heart of rural Leicestershire, is a cell in B wing crammed with legal documents. Bookshelves lining the walls groan under the weight of law volumes. Pinned to the cell door is a sign that reads "Prison Law Advice Centre" - this is the only legal centre within the UK prison system. It is also John Hirst's prison cell, where he serves a discretionary life sentence for manslaughter.
Hirst and his centre, which is not recognised by the Prison Service, have inspired such notoriety that he advises other prisoners who write in from all over the prison system. Not only that but, he claims, he also answers queries on penal law from solicitors and barristers too. In just five years he has turned himself from a "violent and disruptive" prisoner into a self-styled barrack- room lawyer. His legal record so far extends to 40 cases fought both within the Prison Service's internal judicial system and right up to the High Court.
"Before I would try and get my way with violence," he says. "But the guards are equipped to handle it and that is what they expect and understand. What scares them more than anything else, is the law - that they don't understand at all."
Hirst, a persistent offender from the age of 20, resulting in ever longer prison sentences, once had status as a "category A" prisoner because he was deemed such a risk to the public if he escaped. Now, though, this diminutive man with a raging intensity is more of a thorn in the side of the authorities than ever before. The transformation from "law breaker to law maker" began when he recovered pounds 300 in the county court for some vinyl records lost during a prison move.
And he recounts his most hard fought, successful legal victory with relish. It began when he was charged with an offence which "in any way offends against good order and discipline" while in Hull prison. His crime was to power a CD player by using two wires connected to a light fixture in his cell. The adjudication found against him and he was punished with a loss of privileges. Furthermore, he was also incarcerated in the punishment block for seven days. A subsequent complaint he lodged to a Prison Service area manager proved futile.
Undaunted and determined to see justice enacted, Hirst applied for judicial review in the High Court over his segregation and original charge. Then he lodged a second application when he was moved to Durham prison shortly afterwards, and again placed in the punishment block. The applications were successful and to pour salt on the wounds of the prison governors, he later won pounds 3000 compensation in a private action against the then governor of Durham prison.
John Hirst has now progressed to tackling all injustices brought to his attention within prison walls. His only fee is "a bit of money or maybe a bit of weed". But the rewards are far greater, he says. "I do it for justice. I am looked on as a right pain in the arse and that is the greatest compliment I could ever have."
Yet Hirst, 46, represents a growing number of jail-house lawyers who are finding law a better tool for asserting their rights in traditional prison violence. Rod Morgan, professor of criminal justice at Bristol University explains: "Recently there has been an explosion of prisoners' litigation and particularly prisoners pursuing civil claims. There is a growing awareness of prisoners' rights and they are more able to weigh up the options and pursue their own grievances."
No statistics are available on the phenomenon. However, Vicky King of the Prisoners' Advice Centre, a legal service for inmates, is astounded by how her caseload has rocketed since she set up the service in 1991. "We're getting busier and busier and have 700-800 cases on file," she explains. "There have always been prisoners who study criminal law and follow their cases and appeals and so on. But it is people like John Hirst and other lifers who pursue civil law actions that are becoming more common.
"Now we get calls from guys who have been inside for 16 years and say, 'I've never done this before but I really want to take a case up against the Prison Service. And many we speak to are aware of the power of judicial review and other legal terms," she says.
Many credit ex-prisoner Mark Leech, award-winning playwright and author of the Prisoners' Handbook, as a legally pioneering inmate. During a life in prison for a range of crimes including arson, he has taken out 42 actions ranging from county court level right up to the Court of Appeal. He once won pounds 110 damages for a prison officer's failure to answer his cell bell. And opened the way for more than pounds 1m for claims against the Home Office after challenging deductions from prisoners wages as unlawful.
"Prisoners are finding there is a better way forward on the floor of a court than protesting on a rooftop during a riot," he says. "Prisoners also know that they cannot be physically punished or beaten up for taking legal action and not fighting." Leech accounts for the rise in civil litigation, as do penal reform experts, by courts and judges becoming more willing to listen to prisoners cases. Tim Owen, a barrister who has spent the past 10 years involved in prisoners' rights and the law, says: "The attitude of the courts has changed and they see prisoners as citizens behind bars and that their civil rights should survive behind bars as well. Consequently, they are willing to set standards of procedure on things like transfer and segregation"
However, Leech's and Hirst's expertise is fashioned out of a difficult part of the law. Prison legislation is enshrined in the Prison Act 1952 and the secondary legislation in the Prison Rules 1964. Legal theory appears simple, but in day to day practice it is complex to interpret, says Vicky King. "It is a very murky area. It is only in the past few years that proper text books have started to appear on the topic. Before, very little was known." Prison law - Text and Materials, widely held to be the most authoritative text book on the subject, only appeared in 1993.
When he began his first action, Hirst called on six solicitors to help. They were so mystified by penal law only one agreed to assist with the case.
Prisoners like John Hirst are mainly self taught, particularly in penal law. The alternative is to turn to a correspondence course. Currently, there is an external law degree course by London University, tutored by Wolsey Hall in Oxford. And some prisons will run law courses when demand from prisoners is sufficient.
Yet the benefits of penal law study and then employing what has been learnt can be psychological too, says John Staples, editor of the Prison Service Journal and governor of HM Prison Full Sutton. "It has always been a way of adapting to the deprivations that prison brings. There are always a number in every prison who do things in a very legalistic way with complaints and requests."
However, Hirst is swift to rebut these claims in his eagerness to show how much his new found calling means. He says: "I would forgo my right to leave here if I had to stop studying and practising law." Future aims are to set up a legal advice centre on his release and to carry on with his work for prisoners' rights. His release, though, will be decided by a Discretionary Lifer Panel. "They may very well say that I have aggravated everything by always suing them. But I will still carry on if it means my release is postponed. It's about principles."
This is an abridged version of an article which first appeared in the Sunday Times
Wednesday, December 28, 2011
Doe attacked by golden eagle
Doe attacked by golden eagle
This plucky fawn had an incredible escape when it dived under a fence to get away from a huge golden eagle.
This plucky fawn had a lucky escape when it dived under a fence to get away Photo: Milan Krasula/Solent News & Photo Agency
This plucky fawn had an incredible escape when it dived under a fence to get away from a huge golden eagle.
Tuesday, December 27, 2011
30 years in jail replaced by a £294 fine!
30 years in jail replaced by a £294 fine!
Jailed Wetherby man William Burton gets Philippines pardon
A man from West Yorkshire who was jailed for life for smuggling drugs in the Philippines has been pardoned by the country's president.
William Burton, from Wetherby, was jailed for 30 years in 1992 after being caught trying to smuggle 12lb (5.4kg) of cannabis out of the country.
Burton, 48, who has a Thalidomide-related condition, must not return to the Philippines, a spokeswoman said.
The pardon was granted as a "Christmas clemency" by President Benigno Aquino.
Burton must also pay a £294 fine and pay for his journey home to the UK.
'Done his time'
Guy Tweedy, who set up the Free Billy Burton campaign group, said he welcomed the news.
"While we don't condone what he did, he's deteriorated as a Thalidomider and we had to get him out," he said.
"I've never met him but I just felt that, looking at his case, he's done his time."
Mr Tweedy, from Harrogate, North Yorkshire, said he would "absolutely, definitely" be there to meet Mr Burton when he returned home.
Freddie Astbury, president of Thalidomide UK, said he hoped Mr Burton could come back home as quickly as possible.
"We were very concerned about his health because it had deteriorated rapidly since being in prison," he said.
"Obviously, nobody supports why he was there but, at the end of the day, his health's deteriorated and he needs to be in a safe environment now and get all the help that he needs."
Jeremy Brown, Foreign Office minister, said he had discussed Burton's case with the Filipino government during a recent trip.
"I welcome the news that President Aquino has decided to grant Billy Burton clemency," he said.
"I know that this news will be warmly welcomed by Billy's family and his supporters at the Thalidomide Trust who have campaigned tirelessly on Billy's behalf."
Jailed Wetherby man William Burton gets Philippines pardon
A man from West Yorkshire who was jailed for life for smuggling drugs in the Philippines has been pardoned by the country's president.
William Burton, from Wetherby, was jailed for 30 years in 1992 after being caught trying to smuggle 12lb (5.4kg) of cannabis out of the country.
Burton, 48, who has a Thalidomide-related condition, must not return to the Philippines, a spokeswoman said.
The pardon was granted as a "Christmas clemency" by President Benigno Aquino.
Burton must also pay a £294 fine and pay for his journey home to the UK.
'Done his time'
Guy Tweedy, who set up the Free Billy Burton campaign group, said he welcomed the news.
"While we don't condone what he did, he's deteriorated as a Thalidomider and we had to get him out," he said.
"I've never met him but I just felt that, looking at his case, he's done his time."
Mr Tweedy, from Harrogate, North Yorkshire, said he would "absolutely, definitely" be there to meet Mr Burton when he returned home.
Freddie Astbury, president of Thalidomide UK, said he hoped Mr Burton could come back home as quickly as possible.
"We were very concerned about his health because it had deteriorated rapidly since being in prison," he said.
"Obviously, nobody supports why he was there but, at the end of the day, his health's deteriorated and he needs to be in a safe environment now and get all the help that he needs."
Jeremy Brown, Foreign Office minister, said he had discussed Burton's case with the Filipino government during a recent trip.
"I welcome the news that President Aquino has decided to grant Billy Burton clemency," he said.
"I know that this news will be warmly welcomed by Billy's family and his supporters at the Thalidomide Trust who have campaigned tirelessly on Billy's behalf."
Poor Ian Huntley attacked again!
Poor Ian Huntley attacked again!
The Government cannot charge prisoners 40% of their wage as a Victim Levy to give to the Victim Support for those injured by criminals, and at the same time seek to introduce a policy whereby there is No compensation for criminals injured in prison. This time he is attacked by the Government.
The Government cannot charge prisoners 40% of their wage as a Victim Levy to give to the Victim Support for those injured by criminals, and at the same time seek to introduce a policy whereby there is No compensation for criminals injured in prison. This time he is attacked by the Government.
Monday, December 26, 2011
Kenneth Clarke on the ECtHR
Kenneth Clarke on the ECtHR
"There's at least one case pending where we might be required to take some action to comply with the judgment".
Might is not right here, on the issue of prisoners votes the UK will have to amend the law to comply with Hirst, Frodl, Greens and Scoppola!
"There's at least one case pending where we might be required to take some action to comply with the judgment".
Might is not right here, on the issue of prisoners votes the UK will have to amend the law to comply with Hirst, Frodl, Greens and Scoppola!
Assessing the Impact of the ECHR on National Legal Systems
Assessing the Impact of the ECHR on National Legal Systems
By Helen Keller and Alec Stone Sweet
Assessing the Impact of the ECHR on National Legal Systems
By Helen Keller and Alec Stone Sweet
Assessing the Impact of the ECHR on National Legal Systems
The Government’s human rights policy and human rights judgments
The Government’s human rights policy and human rights judgments
Witness
Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice
Related content
Ministers 'will defy meddling EU over votes for prisoners'
and...
Ministers to urge changes to European court of human rights
Witness
Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice
Related content
Ministers 'will defy meddling EU over votes for prisoners'
and...
Ministers to urge changes to European court of human rights
Wednesday, December 21, 2011
Court of Appeal rules prisoner's exercise in open air not a breach of Article 8
Court of Appeal rules prisoner's exercise in open air not a breach of Article 8
Read the full judgment...
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LADY JUSTICE BLACK
____________________
Between:
Leslie Malcolm
Appellant
- and -
Secretary of State for Justice
Read the full judgment...
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LADY JUSTICE BLACK
____________________
Between:
Leslie Malcolm
Appellant
- and -
Secretary of State for Justice
Tuesday, December 20, 2011
Prisoner loses high court challenge over slopping out
Prisoner loses high court challenge over slopping out
Judge rules Roger Gleaves's claim over practice at HMP Albany fails to qualify as 'degrading and humiliating treatment'
A serving prisoner has lost a high court challenge to the continued practice of slopping out that could have forced the government to spend millions on upgrading old jails in England and Wales.
Roger Gleaves, 77, claimed that having to use a bucket as a toilet in his cell at HMP Albany, on the Isle of Wight, was so degrading it amounted to a breach of his human rights.
Gleaves, the self-styled Bishop of Medway now serving time at Brixton prison, claimed £2,600 in damages for the continued practice between 2005 and 2006 despite the fact slopping out was formally abolished in jails in England and Wales in 1996.
He told Mr Justice Hickinbottom that the use of buckets was deplorable because not every prisoner chose to use it as the target for waste.
"Many put newspaper on the floor, use that and throw it out of the window. The use of this type of sanitation in cells is demeaning, utterly despicable in relation to people's behaviour and upsetting to a number of inmates who have never encountered such a practice before," he said. "It should never have been allowed."
Gleaves, who is due to be released in seven months, was present in court to hear his claim dismissed by the judge. Hickinbottom said it failed to pass the high threshold needed to qualify as "degrading and humiliating treatment" banned under the European convention on human rights.
A recent report by the National Council of Independent Monitoring Boards revealed that 10 prisons were still using the system in about 2,000 cells because they had not been able to install in-cell sanitation or could not afford the refurbishment costs involved in adapting Victorian buildings.
Gleaves was jailed for 15 years in 1998 for raping two 14-year-old boys. His claim was backed by two other ex-Albany inmates, Peter Kirby and Desmond Grant. More than 328 similar claims for damages were in the pipeline pending the result of Gleaves's challenge.
Gleaves's solicitor has been quoted as saying that the work involved could have left Albany with a £12m bill to provide in-cell sanitation and a further cost to compensate for the cells lost as a result of the refurbishment.
New prisons have a toilet in every cell but in some older prisons inmates operate a call button to ask for their cell to be unlocked so they can use facilities outside. Only one prisoner is let out at a time for between six and 10 minutes, with waits depending on how many are in the queue.
Comment: I think the judge was wrong to set such a high threshold. When I was in Albany 1973/4, before it became a regime catering for only Vulnertable Prisoners, there was a system of night sanitation. The cells only measure 8ft 3ins x 7ft 1 ins, the smallest I have ever come across. These were justified on the basis that inmates would not spend long periods in the cells, and there was night sanitation. The quality of life has gone down since my days there. I don't believe that the judge should have ruled against the inmate just because it will cost £millions for refurbishment. Hopefully, the inmate will take the case to the ECtHR.
Judge rules Roger Gleaves's claim over practice at HMP Albany fails to qualify as 'degrading and humiliating treatment'
A serving prisoner has lost a high court challenge to the continued practice of slopping out that could have forced the government to spend millions on upgrading old jails in England and Wales.
Roger Gleaves, 77, claimed that having to use a bucket as a toilet in his cell at HMP Albany, on the Isle of Wight, was so degrading it amounted to a breach of his human rights.
Gleaves, the self-styled Bishop of Medway now serving time at Brixton prison, claimed £2,600 in damages for the continued practice between 2005 and 2006 despite the fact slopping out was formally abolished in jails in England and Wales in 1996.
He told Mr Justice Hickinbottom that the use of buckets was deplorable because not every prisoner chose to use it as the target for waste.
"Many put newspaper on the floor, use that and throw it out of the window. The use of this type of sanitation in cells is demeaning, utterly despicable in relation to people's behaviour and upsetting to a number of inmates who have never encountered such a practice before," he said. "It should never have been allowed."
Gleaves, who is due to be released in seven months, was present in court to hear his claim dismissed by the judge. Hickinbottom said it failed to pass the high threshold needed to qualify as "degrading and humiliating treatment" banned under the European convention on human rights.
A recent report by the National Council of Independent Monitoring Boards revealed that 10 prisons were still using the system in about 2,000 cells because they had not been able to install in-cell sanitation or could not afford the refurbishment costs involved in adapting Victorian buildings.
Gleaves was jailed for 15 years in 1998 for raping two 14-year-old boys. His claim was backed by two other ex-Albany inmates, Peter Kirby and Desmond Grant. More than 328 similar claims for damages were in the pipeline pending the result of Gleaves's challenge.
Gleaves's solicitor has been quoted as saying that the work involved could have left Albany with a £12m bill to provide in-cell sanitation and a further cost to compensate for the cells lost as a result of the refurbishment.
New prisons have a toilet in every cell but in some older prisons inmates operate a call button to ask for their cell to be unlocked so they can use facilities outside. Only one prisoner is let out at a time for between six and 10 minutes, with waits depending on how many are in the queue.
Comment: I think the judge was wrong to set such a high threshold. When I was in Albany 1973/4, before it became a regime catering for only Vulnertable Prisoners, there was a system of night sanitation. The cells only measure 8ft 3ins x 7ft 1 ins, the smallest I have ever come across. These were justified on the basis that inmates would not spend long periods in the cells, and there was night sanitation. The quality of life has gone down since my days there. I don't believe that the judge should have ruled against the inmate just because it will cost £millions for refurbishment. Hopefully, the inmate will take the case to the ECtHR.
Rioters who were jailed faced attacks by other inmates
Rioters who were jailed faced attacks by other inmates
Young offenders entering system fuelled gang culture inside while suicide watch numbers soared, says prisons inspector
Young people charged with riot offences were attacked in at least one youth jail in the aftermath of this summer's disturbances, the chief inspector of prisons has disclosed.
Nick Hardwick said the influx of more than 1,000 prisoners into the jail system in England and Wales fuelled the gang culture inside prisons and actually drew some young people into a violent culture for the first time. Some were attacked, he said, because prisoners had witnessed their home neighbourhoods under attack on television.
The number of prisoners on suicide watch increased by 200% due to staff concerns about the new arrivals.
He also confirmed that a "copycat riot" happened in an over-18s gym at Feltham, but fears that it would spread to younger teenagers proved unfounded.
The conclusions are published in a report by the chief inspector of prisons after an inspection carried out on September 12 to see how Feltham young offenders institution in west London coped with the sudden influx of those remanded on riot charges.
Hardwick said Feltham had to cope with 60 new arrivals in the week after the riots, the number it usually received in a month. At the same time 70 people were moved out to Hindley young offender institution near Wigan to make room for further riot arrests.
The process continued for several more weeks as the young offenders institute was given the task of moving the young offenders behind bars to other jails, to make way for those being freshly charged with riot offences.
The chief inspector said the young people at Feltham were negative toward those involved in the riots as they felt they were responsible for the transfer of their friends to other prisons: "They had seen their homes areas attacked on television and were worried about family and friends there," said Hardwick.
He said the rioters were dispersed across units to avoid altercations as there had already been attacks on those involved in the riots and this was now the primary cause of fights. Restraint had risen slightly, but it was no longer mainly to prevent group fights, but to separate individuals.
"Young people on different units had formed themselves into gangs and there had been fights between units. This included those who had not been involved in gangs in the community before and who had become part of the unit gang to protect themselves,"said Hardwick.
"This was a change to the situation identified during the [previous] inspection [in July] when the task had been to keep known gangs – and particularly those from different postcodes – apart." He said this atmosphere led to a 200% increase in the number of new young inmates on suicide watch.
Michael Spurr, the national offender management service chief executive, said that at the time of the inspection Feltham was adapting to cope with a higher sentenced population of young people than previously. He said that the July inspection report acknowledged that the youth jail was fundamentally safe and recognised the work going on to tackle gang issues.
Young offenders entering system fuelled gang culture inside while suicide watch numbers soared, says prisons inspector
Young people charged with riot offences were attacked in at least one youth jail in the aftermath of this summer's disturbances, the chief inspector of prisons has disclosed.
Nick Hardwick said the influx of more than 1,000 prisoners into the jail system in England and Wales fuelled the gang culture inside prisons and actually drew some young people into a violent culture for the first time. Some were attacked, he said, because prisoners had witnessed their home neighbourhoods under attack on television.
The number of prisoners on suicide watch increased by 200% due to staff concerns about the new arrivals.
He also confirmed that a "copycat riot" happened in an over-18s gym at Feltham, but fears that it would spread to younger teenagers proved unfounded.
The conclusions are published in a report by the chief inspector of prisons after an inspection carried out on September 12 to see how Feltham young offenders institution in west London coped with the sudden influx of those remanded on riot charges.
Hardwick said Feltham had to cope with 60 new arrivals in the week after the riots, the number it usually received in a month. At the same time 70 people were moved out to Hindley young offender institution near Wigan to make room for further riot arrests.
The process continued for several more weeks as the young offenders institute was given the task of moving the young offenders behind bars to other jails, to make way for those being freshly charged with riot offences.
The chief inspector said the young people at Feltham were negative toward those involved in the riots as they felt they were responsible for the transfer of their friends to other prisons: "They had seen their homes areas attacked on television and were worried about family and friends there," said Hardwick.
He said the rioters were dispersed across units to avoid altercations as there had already been attacks on those involved in the riots and this was now the primary cause of fights. Restraint had risen slightly, but it was no longer mainly to prevent group fights, but to separate individuals.
"Young people on different units had formed themselves into gangs and there had been fights between units. This included those who had not been involved in gangs in the community before and who had become part of the unit gang to protect themselves,"said Hardwick.
"This was a change to the situation identified during the [previous] inspection [in July] when the task had been to keep known gangs – and particularly those from different postcodes – apart." He said this atmosphere led to a 200% increase in the number of new young inmates on suicide watch.
Michael Spurr, the national offender management service chief executive, said that at the time of the inspection Feltham was adapting to cope with a higher sentenced population of young people than previously. He said that the July inspection report acknowledged that the youth jail was fundamentally safe and recognised the work going on to tackle gang issues.
Monday, December 19, 2011
Black Panther serial killer Donald Neilson dies in jail
Black Panther serial killer Donald Neilson dies in jail
Donald Neilson, the serial killer known as the Black Panther, has died in hospital aged 75.
Neilson was given four life sentences in 1975 and was one of a small group of notorious prisoners who were told they would spend the rest of their lives behind bars.
The Prison Service said Neilson was rushed to hospital for treatment after developing breathing problems on Saturday but doctors were unable to save him.
"HMP Norwich prisoner Donald Neilson was taken to outside hospital in the early hours of Saturday December 17 with breathing difficulties.
"He was pronounced dead there at approximately 6.45pm on Sunday December 18.
"As with all deaths in custody, the independent Prisons and Probation Ombudsman will conduct an investigation," a Prison Service spokesman said.
In June 2008, a High Court judge ruled the notorious killer must never be released from prison.
Neilson, who murdered heiress Lesley Whittle in 1975 and also shot dead three sub-postmasters during armed robberies, had applied for the setting of a minimum jail term which would have given him a chance of parole.
But Mr Justice Teare, sitting in London, announced that Neilson's "whole life" tariff must remain.
He said: "This is a case where the gravity of the applicant's offences justifies a whole life order."
The judge rejected argument on behalf of Neilson, who was sentenced to four terms of life imprisonment at Oxford Crown Court in 1976, that the sentencing "starting point" should be one of 30 years.
Neilson, a jobbing builder, kidnapped 17-year-old Lesley Whittle from her home in Shropshire, leaving a ransom demand for £50,000.
Her body was later found in an underground drainage system hanging from the bottom of a ladder to which Neilson had secured her by the neck with wire.
Mr Justice Teare said that between February and November 1974, Neilson - who lived in Bradford - "shot and killed three sub-postmasters in the course of armed robberies of their premises".
He added: "The trial judge said that the applicant (Neilson) never set out without a loaded shotgun or other loaded weapon and that he never hesitated to shoot to kill whenever he thought he was in danger of arrest or of detection."
The fourth murder, committed between January 3 and March 7 1975, was that of Lesley Whittle.
Mr Justice Teare said: "The three murders of sub-postmasters involved a substantial degree of premeditation because the applicant took with him a loaded firearm which he was prepared to use.
"They were committed for gain. The victims were particularly vulnerable because of their occupation.
"The manner in which the young girl was killed demonstrates that it too involved a substantial degree of premeditation or planning. It also involved the abduction of the young girl."
The judge said that there "are and were no mitigating features".
Mr Justice Teare added: "The trial judge said that the applicant's sentence of life imprisonment must mean life and that if he ever were released from prison it should only be on account of great age or infirmity."
It was plain from the sentencing remarks of the trial judge that Neilson was "ruthlessly prepared to shoot to kill if he considered such action necessary".
The location and manner of Lesley Whittle's death "indicates that she must have been subjected by the applicant to a dreadful and horrific ordeal", he added.
Donald Neilson, the serial killer known as the Black Panther, has died in hospital aged 75.
Neilson was given four life sentences in 1975 and was one of a small group of notorious prisoners who were told they would spend the rest of their lives behind bars.
The Prison Service said Neilson was rushed to hospital for treatment after developing breathing problems on Saturday but doctors were unable to save him.
"HMP Norwich prisoner Donald Neilson was taken to outside hospital in the early hours of Saturday December 17 with breathing difficulties.
"He was pronounced dead there at approximately 6.45pm on Sunday December 18.
"As with all deaths in custody, the independent Prisons and Probation Ombudsman will conduct an investigation," a Prison Service spokesman said.
In June 2008, a High Court judge ruled the notorious killer must never be released from prison.
Neilson, who murdered heiress Lesley Whittle in 1975 and also shot dead three sub-postmasters during armed robberies, had applied for the setting of a minimum jail term which would have given him a chance of parole.
But Mr Justice Teare, sitting in London, announced that Neilson's "whole life" tariff must remain.
He said: "This is a case where the gravity of the applicant's offences justifies a whole life order."
The judge rejected argument on behalf of Neilson, who was sentenced to four terms of life imprisonment at Oxford Crown Court in 1976, that the sentencing "starting point" should be one of 30 years.
Neilson, a jobbing builder, kidnapped 17-year-old Lesley Whittle from her home in Shropshire, leaving a ransom demand for £50,000.
Her body was later found in an underground drainage system hanging from the bottom of a ladder to which Neilson had secured her by the neck with wire.
Mr Justice Teare said that between February and November 1974, Neilson - who lived in Bradford - "shot and killed three sub-postmasters in the course of armed robberies of their premises".
He added: "The trial judge said that the applicant (Neilson) never set out without a loaded shotgun or other loaded weapon and that he never hesitated to shoot to kill whenever he thought he was in danger of arrest or of detection."
The fourth murder, committed between January 3 and March 7 1975, was that of Lesley Whittle.
Mr Justice Teare said: "The three murders of sub-postmasters involved a substantial degree of premeditation because the applicant took with him a loaded firearm which he was prepared to use.
"They were committed for gain. The victims were particularly vulnerable because of their occupation.
"The manner in which the young girl was killed demonstrates that it too involved a substantial degree of premeditation or planning. It also involved the abduction of the young girl."
The judge said that there "are and were no mitigating features".
Mr Justice Teare added: "The trial judge said that the applicant's sentence of life imprisonment must mean life and that if he ever were released from prison it should only be on account of great age or infirmity."
It was plain from the sentencing remarks of the trial judge that Neilson was "ruthlessly prepared to shoot to kill if he considered such action necessary".
The location and manner of Lesley Whittle's death "indicates that she must have been subjected by the applicant to a dreadful and horrific ordeal", he added.
Sunday, December 18, 2011
Force-fed and beaten – life for women in jail
Force-fed and beaten – life for women in jail
New UN guidelines are being flouted worldwide, Independent on Sunday research shows
Female prisoners around the world are being subjected to body cavity searches, beatings and force-feeding, are held in padded cells, shackled during childbirth, and made to work in chain gangs. Some of the worst conditions are in developing countries, but there are also serious abuses and overcrowding in Europe and North America. These are the major findings of a survey by The Independent on Sunday to mark the first anniversary of United Nations rules governing the treatment of women in prison.
The "Bangkok Rules" make stipulations about contact with families, gender-specific healthcare, psychological treatment and hygiene, and they forbid strip searches in most circumstances. The guidelines were adopted on 21 December 2010, but reports from around the world show they are being widely flouted.
In Greece, for example, prisoners have been offered a choice between a vaginal search and solitary confinement on a course of laxatives. Chinese prison officers encouraged inmates to tie each other up and fight. In Turkmenistan, prisoners are shackled to their beds as they give birth - a practice that is also legal in most of the United States. South African prisoners complain that they run out of water on an almost monthly basis. A Russian male deputy prison governor was jailed for beating female inmates with his fists and boots. Rape victims have been jailed in Afghanistan for having extramarital sex. And women's prisons from Russia to Canada, France to Australia have been condemned for their appalling living conditions and inadequate mental and physical healthcare.
Just as alarming is the steep rise in the number of women being jailed. More than 500,000 are in prison around the world. In the US alone, there are now eight times more women in prison than 30 years ago. Fiona Cannon, who chairs the Prison Reform Trust's Women's Justice Taskforce, said women's prisons are now seen as "stop-gap providers of drug detox, social care, mental health assessment and treatment, and temporary housing". Self-harm and suicide are far more common among female prisoners than male, relatively few women are in jail for violent crimes, a majority have children, and many are drug addicts or victims of sexual abuse.
At Johannesburg Women's Prison, cells typically contain one toilet, one sink, one shower and as many as 40 people. Prisoners are locked in from 2pm to 8am. "People can kill each other before they unlock the cells," Duduzile Matlhabadile, a former prisoner, told The IoS. "You don't know what's going to happen. It's not safe in there." Ms Matlhabadile, who served 12 years for armed robbery and homicide, recalled an incident in which a woman threw boiling water over a fellow prisoner; it took two hours for the guards to come and open the doors. She said her cell would often be without water for two days at a time.
A former judge inspector of prisons in South Africa, Deon van Zyl, last year called the country's prison conditions "shockingly inhumane". Campaigners at the Wits Justice Project, which investigates problems in South Afica's justice system, say the Department of Correctional Services has ignored their requests to gain access to prisons since February, adding that anecdotal evidence indicates conditions have not improved.
In northern Turkmenistan, inmates at the Dashoguz Women's Prison colony are reportedly handcuffed to the bed from both sides while giving birth. The baby is given away and the woman returns to forced labour a day or two later. More than 2,000 women are housed in a colony built for 1,000. Fights break out when food is handed out: black bread, porridge and a thin soup made of bones, cotton oil and pumpkin make up the daily diet.
The EU has its share of horrors, too. Greece's Thiva Women's Prison is an hour north of Athens. A former detoxification centre, it has the bleak atmosphere of a converted warehouse. Its dormitories each hold six bunk beds and a couple of single beds. A communal area features a concrete floor, dark green walls and little else; the exercise yard contains no equipment or shelter. Messages are conveyed to inmates via a loudspeaker. Vaginal searches are conducted there, as in other women's prisons in Greece. Until earlier this year, prisoners who refused a vaginal examination on arrival were placed in a segregation unit for several days and made to take laxatives. Authorities say vaginal searches are now undertaken only in exceptional circumstances and are now done by trained doctors, rather than by nursing assistants. They say laxatives are no longer administered, but monitors from the European Committee for the Prevention of Torture confirmed that the practice was still going on when they visited in January.
In France, strip searches are more or less routine, and inmates' letters seen by The IoS complain about being made to adopt degrading positions. One pregnant woman was told to lift up her breasts while being searched before being permitted to see her family in the visiting room. But the real problem in France's prisons is healthcare. In the mixed-sex Nîmes Prison in southern France, for example, there is no facility for gynaecological examinations, which means that no preventative consultations are done.
In England and Wales, conditions are far more benign, but the number of women in jail has increased from 1,800 in 1996 to 4,100 now. More than half of female prisoners say that they have suffered domestic violence, 37 per cent have previously attempted suicide, nearly 40 per cent left school before 16, and one in three have experienced sexual abuse. More than two-thirds of female prisoners have children, which means, according to Home Office research in 2003, that prison deprives nearly 20,000 children of their mothers each year. And judges do not take into account whether a defendant is a primary carer. "It's deeply ingrained in judges that a child must not be an excuse to avoid imprisonment," said Rona Epstein, who has studied 47 cases in England and Wales where judges have ignored the rights of the child.
The situation in North America is worse. The California state prison healthcare system has been in federal receivership since 2006. To get healthcare and living conditions to a constitutional minimum, the state has been ordered to reduce its prison population by 33,000 over the next two years. In the meantime, supplies of medicines and sanitary products are limited, and understaffing means prisons are in lock-down mode. Two-thirds of education staff have been laid off in the past two years, and all the while the prison population continues to rise.
The state's two biggest female prisons are both in the desert town of Chowchilla. Valley State Prison is designed to hold 2,024 people and is currently housing 3,810. Central California Women's Facility is holding 3,918, far more than its 2,004 capacity. Cells originally built for four people are holding 10. "We've never, ever had the reports of violence among peers that we're seeing now," said Cynthia Chandler, the director of the women's campaign group Justice Now. "People are dirty, their cells are dirty, they're bleeding on themselves, they're emotional and in a state of despair. It's creating conditions inside a pressure cooker." And, across the border in Arizona, female chain gangs are made to bury the dead and clear wasteland in the desert heat, in a scheme introduced by Sheriff Joe Arpaio in June.
Andrew Coyle, director of the International Centre for Prison Studies at London University, said: "Scandinavian practice in general terms is better than in many other countries. That's because they put fewer people in prison, and the consequence is they can run them more decently and humanely. The criminal justice system is kept for those who need to be locked up for the sake of society.
"Reducing reoffending is a false target. It's based on the premise that sending someone to prison makes them less likely to commit crime. In fact, one of the strongest predictors of future offending is being sent to prison. We know the solutions: more community-based facilities and putting women in small units close to home. The answers are there. They're just not being implemented."
New UN guidelines are being flouted worldwide, Independent on Sunday research shows
Female prisoners around the world are being subjected to body cavity searches, beatings and force-feeding, are held in padded cells, shackled during childbirth, and made to work in chain gangs. Some of the worst conditions are in developing countries, but there are also serious abuses and overcrowding in Europe and North America. These are the major findings of a survey by The Independent on Sunday to mark the first anniversary of United Nations rules governing the treatment of women in prison.
The "Bangkok Rules" make stipulations about contact with families, gender-specific healthcare, psychological treatment and hygiene, and they forbid strip searches in most circumstances. The guidelines were adopted on 21 December 2010, but reports from around the world show they are being widely flouted.
In Greece, for example, prisoners have been offered a choice between a vaginal search and solitary confinement on a course of laxatives. Chinese prison officers encouraged inmates to tie each other up and fight. In Turkmenistan, prisoners are shackled to their beds as they give birth - a practice that is also legal in most of the United States. South African prisoners complain that they run out of water on an almost monthly basis. A Russian male deputy prison governor was jailed for beating female inmates with his fists and boots. Rape victims have been jailed in Afghanistan for having extramarital sex. And women's prisons from Russia to Canada, France to Australia have been condemned for their appalling living conditions and inadequate mental and physical healthcare.
Just as alarming is the steep rise in the number of women being jailed. More than 500,000 are in prison around the world. In the US alone, there are now eight times more women in prison than 30 years ago. Fiona Cannon, who chairs the Prison Reform Trust's Women's Justice Taskforce, said women's prisons are now seen as "stop-gap providers of drug detox, social care, mental health assessment and treatment, and temporary housing". Self-harm and suicide are far more common among female prisoners than male, relatively few women are in jail for violent crimes, a majority have children, and many are drug addicts or victims of sexual abuse.
At Johannesburg Women's Prison, cells typically contain one toilet, one sink, one shower and as many as 40 people. Prisoners are locked in from 2pm to 8am. "People can kill each other before they unlock the cells," Duduzile Matlhabadile, a former prisoner, told The IoS. "You don't know what's going to happen. It's not safe in there." Ms Matlhabadile, who served 12 years for armed robbery and homicide, recalled an incident in which a woman threw boiling water over a fellow prisoner; it took two hours for the guards to come and open the doors. She said her cell would often be without water for two days at a time.
A former judge inspector of prisons in South Africa, Deon van Zyl, last year called the country's prison conditions "shockingly inhumane". Campaigners at the Wits Justice Project, which investigates problems in South Afica's justice system, say the Department of Correctional Services has ignored their requests to gain access to prisons since February, adding that anecdotal evidence indicates conditions have not improved.
In northern Turkmenistan, inmates at the Dashoguz Women's Prison colony are reportedly handcuffed to the bed from both sides while giving birth. The baby is given away and the woman returns to forced labour a day or two later. More than 2,000 women are housed in a colony built for 1,000. Fights break out when food is handed out: black bread, porridge and a thin soup made of bones, cotton oil and pumpkin make up the daily diet.
The EU has its share of horrors, too. Greece's Thiva Women's Prison is an hour north of Athens. A former detoxification centre, it has the bleak atmosphere of a converted warehouse. Its dormitories each hold six bunk beds and a couple of single beds. A communal area features a concrete floor, dark green walls and little else; the exercise yard contains no equipment or shelter. Messages are conveyed to inmates via a loudspeaker. Vaginal searches are conducted there, as in other women's prisons in Greece. Until earlier this year, prisoners who refused a vaginal examination on arrival were placed in a segregation unit for several days and made to take laxatives. Authorities say vaginal searches are now undertaken only in exceptional circumstances and are now done by trained doctors, rather than by nursing assistants. They say laxatives are no longer administered, but monitors from the European Committee for the Prevention of Torture confirmed that the practice was still going on when they visited in January.
In France, strip searches are more or less routine, and inmates' letters seen by The IoS complain about being made to adopt degrading positions. One pregnant woman was told to lift up her breasts while being searched before being permitted to see her family in the visiting room. But the real problem in France's prisons is healthcare. In the mixed-sex Nîmes Prison in southern France, for example, there is no facility for gynaecological examinations, which means that no preventative consultations are done.
In England and Wales, conditions are far more benign, but the number of women in jail has increased from 1,800 in 1996 to 4,100 now. More than half of female prisoners say that they have suffered domestic violence, 37 per cent have previously attempted suicide, nearly 40 per cent left school before 16, and one in three have experienced sexual abuse. More than two-thirds of female prisoners have children, which means, according to Home Office research in 2003, that prison deprives nearly 20,000 children of their mothers each year. And judges do not take into account whether a defendant is a primary carer. "It's deeply ingrained in judges that a child must not be an excuse to avoid imprisonment," said Rona Epstein, who has studied 47 cases in England and Wales where judges have ignored the rights of the child.
The situation in North America is worse. The California state prison healthcare system has been in federal receivership since 2006. To get healthcare and living conditions to a constitutional minimum, the state has been ordered to reduce its prison population by 33,000 over the next two years. In the meantime, supplies of medicines and sanitary products are limited, and understaffing means prisons are in lock-down mode. Two-thirds of education staff have been laid off in the past two years, and all the while the prison population continues to rise.
The state's two biggest female prisons are both in the desert town of Chowchilla. Valley State Prison is designed to hold 2,024 people and is currently housing 3,810. Central California Women's Facility is holding 3,918, far more than its 2,004 capacity. Cells originally built for four people are holding 10. "We've never, ever had the reports of violence among peers that we're seeing now," said Cynthia Chandler, the director of the women's campaign group Justice Now. "People are dirty, their cells are dirty, they're bleeding on themselves, they're emotional and in a state of despair. It's creating conditions inside a pressure cooker." And, across the border in Arizona, female chain gangs are made to bury the dead and clear wasteland in the desert heat, in a scheme introduced by Sheriff Joe Arpaio in June.
Andrew Coyle, director of the International Centre for Prison Studies at London University, said: "Scandinavian practice in general terms is better than in many other countries. That's because they put fewer people in prison, and the consequence is they can run them more decently and humanely. The criminal justice system is kept for those who need to be locked up for the sake of society.
"Reducing reoffending is a false target. It's based on the premise that sending someone to prison makes them less likely to commit crime. In fact, one of the strongest predictors of future offending is being sent to prison. We know the solutions: more community-based facilities and putting women in small units close to home. The answers are there. They're just not being implemented."
Saturday, December 17, 2011
Lord Irvine of Lairg: Incompetent or corrupt?
Lord Irvine of Lairg: Incompetent or corrupt?
A BRITISH INTERPRETATION OF CONVENTION RIGHTS by Lord Irvine of Lairg. A lecture delivered under the auspices of the Bingham Centre hosted by UCL’s Judicial Institute at 6pm on Wednesday, 14 December 2011.
"The hostility towards human rights and the Human Rights Act 1998 (“the HRA”) within some sections of the press, and their very mixed record of reporting on these issues, impels me, for the avoidance of any possible misunderstanding, to reaffirm my unswerving support both for the international system of human rights protection that the European Convention on Human Rights (“the ECHR”) provides and for the provisions of the HRA under which our own Judges protect those rights in domestic law".
I agree with the observation in relation to some sections of the media, and would add that some politicians have behaved just as badly.
Lord Irvine of Lairg claims to both support the ECHR and HRA, but fails to take into account firstly that the ECHR is but a document listing human rights and that it does not in itself offer human rights protection, and secondly that the HRA is in itself incompatible with the ECHR.
It is the responsibility of Member States of the Council of Europe to guarantee the human rights listed under the ECHR. Therefore the CofE requires Member States to incorporate all of the ECHR into domestic law. Whilst the UK has incorporated most of the ECHR into domestic law via the HRA, the UK has failed in its international obligations by omitting Articles 1 and 13.
Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Given that Lord Irvine is described as the architect of the Human Rights Act, surely he is guilty of leaving out these two cornerstones of the structure and thereby weakening it?
Bearing in mind that the UK ratified the ECHR and agreed to abide by the ECHR and decisions of the European Court of Human Rights to which the UK is a party, it beggars belief that the UK's obligation to respect human rights does not form part of domestic law, and that the human right to an effective remedy for human rights breach does not exist at national level. Lord Irvine is at best guilty of incompetence or at worst corruption.
Probably the highlight of Irvine's period in office was the incorporation of the European Convention on Human Rights into United Kingdom law. Irvine devised a measure to maintain the supremacy of Parliament while allowing judges to declare Acts of Parliament not to be in compliance with the Convention.
My accusation is that Lord Irvine sacrificed our human rights in favour of the doctrine of the supremacy of Parliament. In spite of his claim of unswerving support for the ECHR, the truth is he unswervingly supports the supremacy of Parliament. The problem that he has conveniently ignored is that European law does not recognise the British concept of parliamentary supremacy...Parliamentary supremacy is blamed by contemporary legal historians for the failure of English law to develop due process in the American sense (that is, a mechanism for protecting the human rights of individuals from being arbitrarily infringed by the government).
Supporters of the supremacy of Parliament believe that the doctrine is threatened by the UK being a Member State of the Council of Europe and European Union. Sovereignty of the people and not supremacy of Parliament is the guiding principle of the institutions in Europe. Lord Irvine fails to address this obvious conflict in his lecture to the UK Supreme Court. With such obvious bias being displayed by Lord Irvine, he should not be lecturing anybody on how to conduct themselves.
"This Lecture will invite our Supreme Court to re-assess all its previous statements about the stance it should adopt in relation to the jurisprudence of the ECHR. My objectives are:
(a) to ensure that the Supreme Court develops the jurisdiction under the HRA that
Parliament intended;
(b) that, in so doing, it should have considered and respectful regard for decisions of the ECHR, but neither be bound nor hamstrung by that case-law in determining Convention rights domestically;
(c) that, ultimately, it should decide the cases before it for itself;
(d) that if, in so doing, it departs from a decision or body of jurisprudence of the ECHR it should do so on the basis that the resolution of the resultant conflict must take effect at State, not judicial, level; and
(e) by so proceeding, enhance public respect for our British HRA and the development and protection of human rights by our own Courts in Britain.
Section 2(1) of the HRA directs the domestic Courts how they are to treat decisions of the Strasbourg Court when interpreting and giving effect to the ‘Convention rights’ domestically. This provision is fundamental to the pivotal new relationships which the Act establishes between our domestic Courts, Parliament and the ECHR. A proper understanding of what the carefully chosen language of s.2(1) requires is essential to an appreciation of the Constitutional nature of the HRA and the adjudicative task which our Courts perform under the Act".
A BRITISH INTERPRETATION OF CONVENTION RIGHTS by Lord Irvine of Lairg. A lecture delivered under the auspices of the Bingham Centre hosted by UCL’s Judicial Institute at 6pm on Wednesday, 14 December 2011.
"The hostility towards human rights and the Human Rights Act 1998 (“the HRA”) within some sections of the press, and their very mixed record of reporting on these issues, impels me, for the avoidance of any possible misunderstanding, to reaffirm my unswerving support both for the international system of human rights protection that the European Convention on Human Rights (“the ECHR”) provides and for the provisions of the HRA under which our own Judges protect those rights in domestic law".
I agree with the observation in relation to some sections of the media, and would add that some politicians have behaved just as badly.
Lord Irvine of Lairg claims to both support the ECHR and HRA, but fails to take into account firstly that the ECHR is but a document listing human rights and that it does not in itself offer human rights protection, and secondly that the HRA is in itself incompatible with the ECHR.
It is the responsibility of Member States of the Council of Europe to guarantee the human rights listed under the ECHR. Therefore the CofE requires Member States to incorporate all of the ECHR into domestic law. Whilst the UK has incorporated most of the ECHR into domestic law via the HRA, the UK has failed in its international obligations by omitting Articles 1 and 13.
Article 1 – Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Given that Lord Irvine is described as the architect of the Human Rights Act, surely he is guilty of leaving out these two cornerstones of the structure and thereby weakening it?
Bearing in mind that the UK ratified the ECHR and agreed to abide by the ECHR and decisions of the European Court of Human Rights to which the UK is a party, it beggars belief that the UK's obligation to respect human rights does not form part of domestic law, and that the human right to an effective remedy for human rights breach does not exist at national level. Lord Irvine is at best guilty of incompetence or at worst corruption.
Probably the highlight of Irvine's period in office was the incorporation of the European Convention on Human Rights into United Kingdom law. Irvine devised a measure to maintain the supremacy of Parliament while allowing judges to declare Acts of Parliament not to be in compliance with the Convention.
My accusation is that Lord Irvine sacrificed our human rights in favour of the doctrine of the supremacy of Parliament. In spite of his claim of unswerving support for the ECHR, the truth is he unswervingly supports the supremacy of Parliament. The problem that he has conveniently ignored is that European law does not recognise the British concept of parliamentary supremacy...Parliamentary supremacy is blamed by contemporary legal historians for the failure of English law to develop due process in the American sense (that is, a mechanism for protecting the human rights of individuals from being arbitrarily infringed by the government).
Supporters of the supremacy of Parliament believe that the doctrine is threatened by the UK being a Member State of the Council of Europe and European Union. Sovereignty of the people and not supremacy of Parliament is the guiding principle of the institutions in Europe. Lord Irvine fails to address this obvious conflict in his lecture to the UK Supreme Court. With such obvious bias being displayed by Lord Irvine, he should not be lecturing anybody on how to conduct themselves.
"This Lecture will invite our Supreme Court to re-assess all its previous statements about the stance it should adopt in relation to the jurisprudence of the ECHR. My objectives are:
(a) to ensure that the Supreme Court develops the jurisdiction under the HRA that
Parliament intended;
(b) that, in so doing, it should have considered and respectful regard for decisions of the ECHR, but neither be bound nor hamstrung by that case-law in determining Convention rights domestically;
(c) that, ultimately, it should decide the cases before it for itself;
(d) that if, in so doing, it departs from a decision or body of jurisprudence of the ECHR it should do so on the basis that the resolution of the resultant conflict must take effect at State, not judicial, level; and
(e) by so proceeding, enhance public respect for our British HRA and the development and protection of human rights by our own Courts in Britain.
Section 2(1) of the HRA directs the domestic Courts how they are to treat decisions of the Strasbourg Court when interpreting and giving effect to the ‘Convention rights’ domestically. This provision is fundamental to the pivotal new relationships which the Act establishes between our domestic Courts, Parliament and the ECHR. A proper understanding of what the carefully chosen language of s.2(1) requires is essential to an appreciation of the Constitutional nature of the HRA and the adjudicative task which our Courts perform under the Act".
Friday, December 16, 2011
“British contributions are needed in the global struggle for equality and diversity”
“British contributions are needed in the global struggle for equality and diversity”
Equality and Diversity Forum London, 13 December 2011
Speech by Thomas Hammarberg
Commissioner for Human Rights of the Council of Europe
I was happy to accept the Equality and Diversity Forum’s invitation to speak today because I am aware of the excellent work that the Forum and all its individual members do to uphold human rights and promote equality. Your work at national level is complementary to my own at international level.
The more I learn about protecting human rights, the more I value organisations such as EDF. Your work is at the centre of human rights protection. Equal opportunities – whether on the basis of age, disability, gender, gender identity, sexual orientation, race, religion or belief – are essential. My travels across Europe highlight the importance of civil society, and of national human rights institutions. Both assist governments to comply with their human rights obligations.
Human rights are sometimes thought to be all about law. Sometimes they are even portrayed as protecting only those who break the law. Due process is of course essential to a democratic society. But human rights matter because they are central to everyone’s wellbeing and our control over our own lives. They are fundamental to strong democracies. They set out the basic principles by which institutions and individuals interact. They provide a framework within which diverse communities can live together harmoniously. And when things go wrong, the courts should set them right.
Perhaps most importantly, human rights are the values that should underpin how the state treats people: protecting life and liberty, ensuring humane treatment, and distributing resources fairly – to health or to education.
Human rights help ordinary people live the lives to which they aspire. I know that here in the UK they have helped children with Downs Syndrome to get the best education. They have helped women who are escaping domestic abuse. They helped an autistic man challenge a decision to take him into care and keep him there against his and his family’s will. Such human rights success stories have changed lives for the better.
Yet, sometimes people think of human rights and equality as “luxuries” to be pursued in the good times, and set aside when the going gets tough. I would argue the opposite. Human rights mean that the burdens arising from economic crisis should be shared in a fair manner; they also require that the weakest and most vulnerable be protected.
Human rights should not be seen as an obstacle standing in the way of some political actions, but rather as a set of rules which support the authorities in choosing approaches which protect the genuine interests of individual human beings – not least in situations of crisis.
My comments this evening will focus on two areas.
I will identify some of the human rights challenges which face many European countries. Many are issues relevant to your own work here in the United Kingdom.
I will also say something about the European Court of Human Rights, and about implementing the Convention at the national level.
The Mandate of the Council of Europe Commissioner
But I want to begin with a few brief remarks about my work as Commissioner.
I was elected by the Parliamentary Assembly of the Council of Europe, ‘to foster the effective observance of human rights’, and assist states to implement human rights standards. So my job is to engage the 47 Council of Europe member states in ‘dialogue’, to promote awareness of human rights, and to identify ‘possible shortcomings’ in the law and practice.
My mandate covers the whole spectrum of social, economic, civil and political rights that are protected by the European Convention on Human Rights, the European Social Charter and international treaties such as the United Nations Convention on the Rights of the Child. These treaties were drafted by states, and states have promised to respect the rights they contain.
Today these rights protect the safety and wellbeing of large numbers of vulnerable people in every European country, including children, women, older people, ethnic and religious minorities, refugees, people with disabilities, migrants and stateless persons, prisoners, sexual minorities, and Gypsies and Travellers.
It is my job to report publicly on positive and negative rights practices, and recommend improvements where necessary.
I also comment on broad human rights issues, such as discrimination, xenophobia, media freedom, Roma rights and protecting the rights of those suspected of terrorism.
Although the Convention and the judgments of the Court are the guiding principles for my work, my office is independent from the European Court of Human Rights.
Challenges facing European states
Europe is rich compared with other parts of the world. Despite this very many people in Europe – perhaps 150 million – live in poverty. Many elderly people and people with disabilities live in very poor circumstances. Women still suffer from pay inequalities and job discrimination. Even in rich countries like the UK, over 2.5 million children live in poverty and I know this is a concern across the political spectrum. Social exclusion is passed on from one generation to the next. Inequalities prevent social mobility. These problems are not new, but today human rights are being further tested by the current economic crisis. Unemployment is rising and resources for social welfare are shrinking. Governments all over Europe consider it necessary to put in place austerity budgets.
Experience across Europe shows that it is often the least well off who suffer most from economic crises, including elderly people, people with disabilities, homeless people and migrants. Women and children are also deeply affected by reduced social welfare as well as cuts to services such as children’s centres or affordable housing. Public services, particularly in poor communities, are being reduced at a time when needs are growing. The risk is that the social gap will grow, with more people living in poverty and needing aid.
This is an extraordinary challenge for all European governments, at all levels. Wise leadership is needed if we are to come out of the crisis with our liberties reinforced. A central question is whether we can create a more just society for future generations.
Obviously, there are different views about the way forward on the economy. One of the strengths of democratic governance is open public debate about these political choices. This debate is a good thing and should lead to better decision making. Underpinning different party political approaches, however, the human rights to which states have committed themselves should act as guiding principles for decisions.
The standards to which the countries of Europe have committed themselves include rights to social security, an adequate standard of living, food, education, housing, health and work. Now more than ever, governments must respect, protect and fulfil these standards. We need concrete national strategies that promote social cohesion and prevent any watering down either of human rights standards or of the routes by which people can secure those rights in practice.
Governments should engage local authorities, national human rights structures and civil society organisations in their budget plans. We can only be sure that human rights are being protected if budgets are audited from a human rights perspective.
So it is clear that the economic crisis presents a major threat to human rights protection across Europe. But we have also seen some hugely encouraging progress.
For example, European rules have helped to drive up standards of legal protection against discrimination on grounds of age, sexual orientation and religion and belief. At the same time there have been encouraging changes in public attitudes in these areas.
Despite this welcome progress, in a number of European states people are still stigmatised because of their sexual orientation or gender identity. Some are harassed by the police, left unprotected when attacked, or deported to countries where they risk torture or execution.
This is not a new human rights issue; lesbian, gay, bisexual and transgender people have always – in theory - been protected, because human rights apply to ‘everyone’. What is new is the wider recognition that this discrimination is a human rights violation. I welcome the UK’s decision to give priority to combating this form of discrimination during its Presidency of the Council of Europe. I hope civil society groups like the EDF will monitor domestic and international progress in this regard.
The Revised European Social Charter contains the first binding human rights provision for the protection of older people. During my travels throughout Europe I see at first hand the need for this protection. I have visited modern institutions with excellent care. But I have also seen centres in which elderly residents were treated more like numbers than human beings. I read with concern the conclusions of the inquiry by your own Equality and Human Rights Commission, which only last month found that home care often fails to respect older people’s basic rights. Such monitoring by national human rights institutions should take place in all countries.
There are more than 80 million people with disabilities in Europe. Their rights are protected – in theory – but progress from theory to practice is slow. Disabled people themselves are now rightly demanding a shift from charity to rights based action. The fundamental principle is that people with disabilities must be able to participate in all decisions affecting their lives. Increasingly, disabled people are also linking up with other civil society groups to promote common agendas, as they do in EDF’s work.
Throughout Europe, countries are closing their borders to refugees as well as to migrants. States have a right to control their borders. But they also have a duty to protect the rights of everyone inside their territory, including migrants and refugees. The challenge is to strike a proper balance between protecting the rights of those inside, while maintaining control of the frontiers. Criminalising irregular migrants is a disproportionate measure which goes beyond a state’s legitimate interest in border control.
Criminalisation also creates opportunities for smugglers and traffickers. Refugees who leave their countries to escape death or persecution often have no choice: if they cannot seek asylum in another country legally, they are compelled to travel irregularly. These tragic situations have sparked an extraordinary response from civil society, including many religious groups, who provide support against destitution and inhumanity.
Austerity budgets are cutting legal aid. It is sometimes forgotten that access to justice is a fundamental human right. Without legal aid, vulnerable people struggle to get the legal help they need to secure justice. At the same time, the ‘front end’ costs saved through the cuts may well be dwarfed by later costs: the costs of deporting a migrant who misunderstood the time limit for applying and thus became irregular will far outstrip the costs saved in providing legal advice at the outset.
There are challenging balances to be struck between different rights. Here in the UK I see that an important and sometimes heated discussion is underway about freedom of expression, press regulation and the right to respect for private and family life. Clearly the unauthorised hacking of someone’s phone or email is an offence unless there is a clear justification. That such intrusions appear to have been widespread is of great concern. Striking the right balance to allow for good investigative journalism whilst protecting a person’s privacy is difficult. I congratulate the UK government on setting up Justice Leveson’s Inquiry into these topics.
I know that EDF members work on all these issues. You are part of a broad family of human rights advocates across Europe. We all have much to give to and learn from each other. A powerful, passionate voice for human rights will be heard across Europe if groups campaigning on separate human rights issues can work together. The prize of course is greater protection for the people who need it most.
The Significance of the European Convention
I now turn to the role of the European Convention on Human Rights in today’s world. As you know, the Convention was drawn up after the atrocities of the Second World War with UK lawyers playing a major role. The UK was one of the first countries to ratify the Convention in 1950.
Today the Convention is perhaps the most successful international instrument for protecting human rights in the world. All Council of Europe member states – with 800 million inhabitants - have ratified the Convention. Its provisions represent common democratic values – values that matter to people in all European countries and that many have had to struggle to secure.
When they ratify the Convention, States promise to respect certain basic human rights, such as freedom from torture and from inhuman and degrading treatment, the right to a fair trial, the right to respect for private, home and family life, and the right to non-discrimination in the enjoyment of Convention rights. To make sure that states live up to their promises, the Convention set up the European Court of Human Rights. Individuals can go to the Court if they believe that a state has failed to respect their Convention rights.
The Court’s judgments have played an important role in protecting the rights of ordinary people, including vulnerable groups, in the UK and across Europe as a whole. In most European countries, including the UK, the law is now heavily influenced by the Court’s decisions - on asylum and migration, mental health, access to justice, the treatment of terrorist suspects, equality and non-discrimination, the rights of children, and the rights of people with disabilities.
The key characteristic of this system is the right of individual petition, giving an individual the right to seek justice, as a last resort, at supranational level. This possibility is used to an increasing extent. Last year more than 60,000 new applications were filed and the number of pending cases is now 154,000.
In other words, the Court has been overwhelmed by its own success. This is the background to the intense discussion within the Council of Europe on how to reform this mechanism in order to protect it from becoming dysfunctional.
However, the primary question is not why the Court has difficulties coping, but why so many individuals feel the need to go there with their complaints. The answer is that much more must be done to protect human rights at home, at the domestic level.
The European system was never intended to act as a long-term substitute for national mechanisms – quite the reverse. Each individual should be able to seek and receive justice at home. Recourse to an international court should be seen for what it is – essentially a failure to provide proper national remedies. This fundamental principle of subsidiarity is enshrined in the Convention itself.
The major cause of the Court’s troubles is the systematic failure of some states to implement the Convention - their national courts just do not provide sufficient protection of individual rights. It is vital therefore that all member states, including the UK, ensure that their domestic law and practices fully incorporate and operationalise Convention rights.
A number of arguments have been made for changes in the balance between the role of the Court and that of national authorities. It has been argued that where national authorities have fully implemented the Convention, the European Court should not normally need to be involved. In other words, member states whose parliaments have incorporated the Convention into national law - and their judicial systems apply these standards - should be allowed considerable latitude before the European Court intervenes.
In fact, this is already the practice - not because the Court makes any distinction between countries but because the issues in such cases have been competently dealt with at national level.
It has also been argued that some European Court judgments should not be enforced if there is a clear and democratic expression of opinion against it by a particular country’s parliament. The proposal is that there should be a possibility for “parliamentary override”. I can understand why this idea might be seen as attractive, but it is fundamentally inconsistent with the concept of the Convention as an international charter of fundamental rights and freedoms.
What seems to be forgotten by some of the critics also here in the UK is that the Convention is built on the notion of a collective guarantee. It could be described as a reciprocal agreement between state parties that recognises that they – and their people - have an interest in the protection of human rights also in other states.
The fact that one state has a treaty right to question the behaviour of other states, provided that it accepts the quid pro quo, has been of enormous importance in the efforts to ensure respect for human rights globally.
Apart from the right of petition by individuals, the European Convention makes it possible for states to bring to Strasbourg a case against another state, as happened when Ireland filed a complaint against the UK in the early seventies on torture, inhuman or degrading treatment and the policy of internment without trial in Northern Ireland.
Another reflection of the notion of a collective guarantee is the peer-review procedure through which the Committee of Ministers in Strasbourg monitors the implementation of the Court decisions.
The idea is that we will all benefit from a situation where human rights are respected all over the continent. Less than ever are the nation states isolated from their neighbours – I do not need to mention the obvious link between human rights and peace; or the relationship between human rights and migration; or the simple fact that each and every state nowadays has citizens in other countries.
When asked “What’s in it for us?” I believe we should stress the significance of this inter-national dimension. This is of course an argument about legitimate self-interest.
Moreover, I am naïve enough to trust that there is even today space for idealism in our societies. Many people do indeed care about the situation of people in other parts of the world, especially for people who – because of repression or fear – cannot defend their own rights. Our politicians should pay respect to such solidarity.
However, the European Court should be protected not only because of its rulings on cases in certain problem countries: its supervision is an asset for every one of the member states – also for the United Kingdom.
Need to Counter Misunderstandings
I must say that I find some of the criticism here in the UK against the Strasbourg system surprisingly ill-informed and I have hoped that the politicians who know better would stand up stronger against this populist and xenophobic discourse. Reading the tabloids one gets an impression of warfare between the UK parliament and judiciary on the one side and the stupid foreigners in Strasbourg, on the other.
Sir Nicholas Bratza, the current President of the European Court, has corrected many of the misunderstandings in an article in a law journal recently – among them the notion of unwanted judicial “activism”. He mentioned that of the 1,200 applications relating to the UK, 1,177 were declared inadmissible or struck out. Only 23 – less than three per cent of the total – resulted in a judgment of the Court, several of which resulted in findings of no breach.
He also pointed out that the Court had taken up some cases on which they actually agreed with the decision and reasoning of the English Court of Appeal - because the issue itself was of great importance for the interpretation of the Convention and therefore would be an essential contribution to the Strasbourg case law - with an impact on other countries.
Such clarifications seem, however, to be totally overshadowed by the vitriolic anger against some controversial rulings. Outstanding among those has been the decision five years ago, which is still unimplemented, against a blanket ban on the right of any convicted prisoner to be able to vote, irrespective of the nature and circumstances of their offence.
I do not want to hide that I have been disappointed by statements made by parliamentarians and others on this issue. Universal suffrage is a fundamental principle in a democracy. As the Canadian Supreme Court stated when it ruled nine years ago that prisoners should be able to vote: it is necessary to confirm that “everyone is equally worthy and entitled to respect under the law”.
My position is that a blanket, automatic ban does indeed violate basic principles. If deprivation of the right to vote is to be a punishment then this should be expressly spelled out in each individual case by a judicial authority. Moreover, there should be a logical link between the nature of the crime and this particular punishment.
In fact, several other states in Europe – among them Denmark, the Netherlands and Switzerland – do allow prisoners to vote with the rest of the population. This is a non-issue in these countries. Why is the UK so different?
The UK Chairmanship and the Human Rights Act
The United Kingdom has recently taken on the rotating six-monthly Chairmanship of the Council of Europe. The UK has put reform of the Court as a priority and I welcome this. I also welcome the constructive framework within which the question of reform is being pursued. The Foreign Secretary has made it clear that concerns about the Court are intended to emphasise rather than to undermine the UK government’s absolute commitment to the ECHR, and to ‘upholding the rights and freedoms set out in the Convention’.
It so happens that the Chairmanship coincides with a discussion about the Human Rights Act. The Convention rights became part of UK law when Parliament adopted the Human Rights Act.
The Act has been applied in a series of important judgments. UK courts have taken into account decisions of the European Court of Human Rights, alongside traditional British common law liberties, to protect vulnerable individuals and to uphold basic rights.
The Deputy Prime Minister made this helpful remark in a speech earlier this year: “The Human Rights Act and the European Convention on Human Rights have been instrumental in preventing local authorities from snooping on law-abiding families, in removing innocent people from the national DNA database, in preventing rapists from cross-examining their victims in court, in defending the rights of parents to have a say in the medical treatment of their children, in holding local authorities to account where they have failed to protect children from abuse, in protecting the anonymity of journalists’ sources, and in upholding the rights of elderly married couples to be cared for together in care homes.”
Today, the UK courts are looked to by courts far outside Europe when they apply human rights law. Our distinguished Chair this evening, Lord Justice Sedley, has been an author of some of these important judgments.
With the Human Rights Act the UK has found innovative and positive ways of combining its own long-established legal and political traditions with the modern expression of human rights principles set out in the Convention. The Act upholds parliamentary sovereignty while strengthening the doctrine of the separation of powers by giving some more authority to the judiciary.
It enables individuals to seek remedies at the national level, rather than having to go straight to Strasbourg. In the past, the UK was one of the countries with the most cases pending before the European Court: the HRA has changed this.
The prestigious Joint Parliamentary Committee for Human Rights, which scrutinises draft legislation to check its compatibility with the Convention, has rightly concluded that the UK ‘can generally be proud of its record on national implementation of the Convention’.
For most people the impact of the Human Rights Act has probably been less from the courts, and more from the requirement that public authorities in general respect human rights in everything they do.
Service users can now use human rights arguments if they are abused, or if they are excluded from decisions about their own care, or if their needs – for adequate care or humane and dignified treatment – are ignored. I know this has had considerable impact.
Protecting Established Standards
While in Belfast the other day, I met politicians and representatives of civil society and the newly appointed members of the NI Human Rights Commission. Their common message was the centrality of human rights to peace building and the importance of maintaining and building on the advances to date. They expressed grave concerns about any potential changes to the Human Rights Act or weakening of its protections.
As Commissioner I share this concern. Any weakening of the human rights protections in the Act would be noted outside the UK, and welcomed by less democratic states as tacit encouragement to weaken their own human rights protections. What the UK does today will send a powerful signal to other states about what they can do tomorrow.
It is vital that the UK use its current chairmanship of the Council of Europe to good effect in promoting our common goals of securing democracy, the rule of law and universal human rights. This country is widely respected across Europe for its long and strong tradition of upholding civil liberties and it therefore has a vital role to play in securing and indeed improving on European human rights standards.
Needless to say a UK foreign policy devoted to human rights will only be seen as legitimate to the extent that it also reflects an active human rights policy at home: foreign and domestic policies are inter-twined in this regard. I have said elsewhere that there are no grounds for complacency about human rights across Europe.
This is as true for the UK as any other member state.
Equality and Diversity Forum London, 13 December 2011
Speech by Thomas Hammarberg
Commissioner for Human Rights of the Council of Europe
I was happy to accept the Equality and Diversity Forum’s invitation to speak today because I am aware of the excellent work that the Forum and all its individual members do to uphold human rights and promote equality. Your work at national level is complementary to my own at international level.
The more I learn about protecting human rights, the more I value organisations such as EDF. Your work is at the centre of human rights protection. Equal opportunities – whether on the basis of age, disability, gender, gender identity, sexual orientation, race, religion or belief – are essential. My travels across Europe highlight the importance of civil society, and of national human rights institutions. Both assist governments to comply with their human rights obligations.
Human rights are sometimes thought to be all about law. Sometimes they are even portrayed as protecting only those who break the law. Due process is of course essential to a democratic society. But human rights matter because they are central to everyone’s wellbeing and our control over our own lives. They are fundamental to strong democracies. They set out the basic principles by which institutions and individuals interact. They provide a framework within which diverse communities can live together harmoniously. And when things go wrong, the courts should set them right.
Perhaps most importantly, human rights are the values that should underpin how the state treats people: protecting life and liberty, ensuring humane treatment, and distributing resources fairly – to health or to education.
Human rights help ordinary people live the lives to which they aspire. I know that here in the UK they have helped children with Downs Syndrome to get the best education. They have helped women who are escaping domestic abuse. They helped an autistic man challenge a decision to take him into care and keep him there against his and his family’s will. Such human rights success stories have changed lives for the better.
Yet, sometimes people think of human rights and equality as “luxuries” to be pursued in the good times, and set aside when the going gets tough. I would argue the opposite. Human rights mean that the burdens arising from economic crisis should be shared in a fair manner; they also require that the weakest and most vulnerable be protected.
Human rights should not be seen as an obstacle standing in the way of some political actions, but rather as a set of rules which support the authorities in choosing approaches which protect the genuine interests of individual human beings – not least in situations of crisis.
My comments this evening will focus on two areas.
I will identify some of the human rights challenges which face many European countries. Many are issues relevant to your own work here in the United Kingdom.
I will also say something about the European Court of Human Rights, and about implementing the Convention at the national level.
The Mandate of the Council of Europe Commissioner
But I want to begin with a few brief remarks about my work as Commissioner.
I was elected by the Parliamentary Assembly of the Council of Europe, ‘to foster the effective observance of human rights’, and assist states to implement human rights standards. So my job is to engage the 47 Council of Europe member states in ‘dialogue’, to promote awareness of human rights, and to identify ‘possible shortcomings’ in the law and practice.
My mandate covers the whole spectrum of social, economic, civil and political rights that are protected by the European Convention on Human Rights, the European Social Charter and international treaties such as the United Nations Convention on the Rights of the Child. These treaties were drafted by states, and states have promised to respect the rights they contain.
Today these rights protect the safety and wellbeing of large numbers of vulnerable people in every European country, including children, women, older people, ethnic and religious minorities, refugees, people with disabilities, migrants and stateless persons, prisoners, sexual minorities, and Gypsies and Travellers.
It is my job to report publicly on positive and negative rights practices, and recommend improvements where necessary.
I also comment on broad human rights issues, such as discrimination, xenophobia, media freedom, Roma rights and protecting the rights of those suspected of terrorism.
Although the Convention and the judgments of the Court are the guiding principles for my work, my office is independent from the European Court of Human Rights.
Challenges facing European states
Europe is rich compared with other parts of the world. Despite this very many people in Europe – perhaps 150 million – live in poverty. Many elderly people and people with disabilities live in very poor circumstances. Women still suffer from pay inequalities and job discrimination. Even in rich countries like the UK, over 2.5 million children live in poverty and I know this is a concern across the political spectrum. Social exclusion is passed on from one generation to the next. Inequalities prevent social mobility. These problems are not new, but today human rights are being further tested by the current economic crisis. Unemployment is rising and resources for social welfare are shrinking. Governments all over Europe consider it necessary to put in place austerity budgets.
Experience across Europe shows that it is often the least well off who suffer most from economic crises, including elderly people, people with disabilities, homeless people and migrants. Women and children are also deeply affected by reduced social welfare as well as cuts to services such as children’s centres or affordable housing. Public services, particularly in poor communities, are being reduced at a time when needs are growing. The risk is that the social gap will grow, with more people living in poverty and needing aid.
This is an extraordinary challenge for all European governments, at all levels. Wise leadership is needed if we are to come out of the crisis with our liberties reinforced. A central question is whether we can create a more just society for future generations.
Obviously, there are different views about the way forward on the economy. One of the strengths of democratic governance is open public debate about these political choices. This debate is a good thing and should lead to better decision making. Underpinning different party political approaches, however, the human rights to which states have committed themselves should act as guiding principles for decisions.
The standards to which the countries of Europe have committed themselves include rights to social security, an adequate standard of living, food, education, housing, health and work. Now more than ever, governments must respect, protect and fulfil these standards. We need concrete national strategies that promote social cohesion and prevent any watering down either of human rights standards or of the routes by which people can secure those rights in practice.
Governments should engage local authorities, national human rights structures and civil society organisations in their budget plans. We can only be sure that human rights are being protected if budgets are audited from a human rights perspective.
So it is clear that the economic crisis presents a major threat to human rights protection across Europe. But we have also seen some hugely encouraging progress.
For example, European rules have helped to drive up standards of legal protection against discrimination on grounds of age, sexual orientation and religion and belief. At the same time there have been encouraging changes in public attitudes in these areas.
Despite this welcome progress, in a number of European states people are still stigmatised because of their sexual orientation or gender identity. Some are harassed by the police, left unprotected when attacked, or deported to countries where they risk torture or execution.
This is not a new human rights issue; lesbian, gay, bisexual and transgender people have always – in theory - been protected, because human rights apply to ‘everyone’. What is new is the wider recognition that this discrimination is a human rights violation. I welcome the UK’s decision to give priority to combating this form of discrimination during its Presidency of the Council of Europe. I hope civil society groups like the EDF will monitor domestic and international progress in this regard.
The Revised European Social Charter contains the first binding human rights provision for the protection of older people. During my travels throughout Europe I see at first hand the need for this protection. I have visited modern institutions with excellent care. But I have also seen centres in which elderly residents were treated more like numbers than human beings. I read with concern the conclusions of the inquiry by your own Equality and Human Rights Commission, which only last month found that home care often fails to respect older people’s basic rights. Such monitoring by national human rights institutions should take place in all countries.
There are more than 80 million people with disabilities in Europe. Their rights are protected – in theory – but progress from theory to practice is slow. Disabled people themselves are now rightly demanding a shift from charity to rights based action. The fundamental principle is that people with disabilities must be able to participate in all decisions affecting their lives. Increasingly, disabled people are also linking up with other civil society groups to promote common agendas, as they do in EDF’s work.
Throughout Europe, countries are closing their borders to refugees as well as to migrants. States have a right to control their borders. But they also have a duty to protect the rights of everyone inside their territory, including migrants and refugees. The challenge is to strike a proper balance between protecting the rights of those inside, while maintaining control of the frontiers. Criminalising irregular migrants is a disproportionate measure which goes beyond a state’s legitimate interest in border control.
Criminalisation also creates opportunities for smugglers and traffickers. Refugees who leave their countries to escape death or persecution often have no choice: if they cannot seek asylum in another country legally, they are compelled to travel irregularly. These tragic situations have sparked an extraordinary response from civil society, including many religious groups, who provide support against destitution and inhumanity.
Austerity budgets are cutting legal aid. It is sometimes forgotten that access to justice is a fundamental human right. Without legal aid, vulnerable people struggle to get the legal help they need to secure justice. At the same time, the ‘front end’ costs saved through the cuts may well be dwarfed by later costs: the costs of deporting a migrant who misunderstood the time limit for applying and thus became irregular will far outstrip the costs saved in providing legal advice at the outset.
There are challenging balances to be struck between different rights. Here in the UK I see that an important and sometimes heated discussion is underway about freedom of expression, press regulation and the right to respect for private and family life. Clearly the unauthorised hacking of someone’s phone or email is an offence unless there is a clear justification. That such intrusions appear to have been widespread is of great concern. Striking the right balance to allow for good investigative journalism whilst protecting a person’s privacy is difficult. I congratulate the UK government on setting up Justice Leveson’s Inquiry into these topics.
I know that EDF members work on all these issues. You are part of a broad family of human rights advocates across Europe. We all have much to give to and learn from each other. A powerful, passionate voice for human rights will be heard across Europe if groups campaigning on separate human rights issues can work together. The prize of course is greater protection for the people who need it most.
The Significance of the European Convention
I now turn to the role of the European Convention on Human Rights in today’s world. As you know, the Convention was drawn up after the atrocities of the Second World War with UK lawyers playing a major role. The UK was one of the first countries to ratify the Convention in 1950.
Today the Convention is perhaps the most successful international instrument for protecting human rights in the world. All Council of Europe member states – with 800 million inhabitants - have ratified the Convention. Its provisions represent common democratic values – values that matter to people in all European countries and that many have had to struggle to secure.
When they ratify the Convention, States promise to respect certain basic human rights, such as freedom from torture and from inhuman and degrading treatment, the right to a fair trial, the right to respect for private, home and family life, and the right to non-discrimination in the enjoyment of Convention rights. To make sure that states live up to their promises, the Convention set up the European Court of Human Rights. Individuals can go to the Court if they believe that a state has failed to respect their Convention rights.
The Court’s judgments have played an important role in protecting the rights of ordinary people, including vulnerable groups, in the UK and across Europe as a whole. In most European countries, including the UK, the law is now heavily influenced by the Court’s decisions - on asylum and migration, mental health, access to justice, the treatment of terrorist suspects, equality and non-discrimination, the rights of children, and the rights of people with disabilities.
The key characteristic of this system is the right of individual petition, giving an individual the right to seek justice, as a last resort, at supranational level. This possibility is used to an increasing extent. Last year more than 60,000 new applications were filed and the number of pending cases is now 154,000.
In other words, the Court has been overwhelmed by its own success. This is the background to the intense discussion within the Council of Europe on how to reform this mechanism in order to protect it from becoming dysfunctional.
However, the primary question is not why the Court has difficulties coping, but why so many individuals feel the need to go there with their complaints. The answer is that much more must be done to protect human rights at home, at the domestic level.
The European system was never intended to act as a long-term substitute for national mechanisms – quite the reverse. Each individual should be able to seek and receive justice at home. Recourse to an international court should be seen for what it is – essentially a failure to provide proper national remedies. This fundamental principle of subsidiarity is enshrined in the Convention itself.
The major cause of the Court’s troubles is the systematic failure of some states to implement the Convention - their national courts just do not provide sufficient protection of individual rights. It is vital therefore that all member states, including the UK, ensure that their domestic law and practices fully incorporate and operationalise Convention rights.
A number of arguments have been made for changes in the balance between the role of the Court and that of national authorities. It has been argued that where national authorities have fully implemented the Convention, the European Court should not normally need to be involved. In other words, member states whose parliaments have incorporated the Convention into national law - and their judicial systems apply these standards - should be allowed considerable latitude before the European Court intervenes.
In fact, this is already the practice - not because the Court makes any distinction between countries but because the issues in such cases have been competently dealt with at national level.
It has also been argued that some European Court judgments should not be enforced if there is a clear and democratic expression of opinion against it by a particular country’s parliament. The proposal is that there should be a possibility for “parliamentary override”. I can understand why this idea might be seen as attractive, but it is fundamentally inconsistent with the concept of the Convention as an international charter of fundamental rights and freedoms.
What seems to be forgotten by some of the critics also here in the UK is that the Convention is built on the notion of a collective guarantee. It could be described as a reciprocal agreement between state parties that recognises that they – and their people - have an interest in the protection of human rights also in other states.
The fact that one state has a treaty right to question the behaviour of other states, provided that it accepts the quid pro quo, has been of enormous importance in the efforts to ensure respect for human rights globally.
Apart from the right of petition by individuals, the European Convention makes it possible for states to bring to Strasbourg a case against another state, as happened when Ireland filed a complaint against the UK in the early seventies on torture, inhuman or degrading treatment and the policy of internment without trial in Northern Ireland.
Another reflection of the notion of a collective guarantee is the peer-review procedure through which the Committee of Ministers in Strasbourg monitors the implementation of the Court decisions.
The idea is that we will all benefit from a situation where human rights are respected all over the continent. Less than ever are the nation states isolated from their neighbours – I do not need to mention the obvious link between human rights and peace; or the relationship between human rights and migration; or the simple fact that each and every state nowadays has citizens in other countries.
When asked “What’s in it for us?” I believe we should stress the significance of this inter-national dimension. This is of course an argument about legitimate self-interest.
Moreover, I am naïve enough to trust that there is even today space for idealism in our societies. Many people do indeed care about the situation of people in other parts of the world, especially for people who – because of repression or fear – cannot defend their own rights. Our politicians should pay respect to such solidarity.
However, the European Court should be protected not only because of its rulings on cases in certain problem countries: its supervision is an asset for every one of the member states – also for the United Kingdom.
Need to Counter Misunderstandings
I must say that I find some of the criticism here in the UK against the Strasbourg system surprisingly ill-informed and I have hoped that the politicians who know better would stand up stronger against this populist and xenophobic discourse. Reading the tabloids one gets an impression of warfare between the UK parliament and judiciary on the one side and the stupid foreigners in Strasbourg, on the other.
Sir Nicholas Bratza, the current President of the European Court, has corrected many of the misunderstandings in an article in a law journal recently – among them the notion of unwanted judicial “activism”. He mentioned that of the 1,200 applications relating to the UK, 1,177 were declared inadmissible or struck out. Only 23 – less than three per cent of the total – resulted in a judgment of the Court, several of which resulted in findings of no breach.
He also pointed out that the Court had taken up some cases on which they actually agreed with the decision and reasoning of the English Court of Appeal - because the issue itself was of great importance for the interpretation of the Convention and therefore would be an essential contribution to the Strasbourg case law - with an impact on other countries.
Such clarifications seem, however, to be totally overshadowed by the vitriolic anger against some controversial rulings. Outstanding among those has been the decision five years ago, which is still unimplemented, against a blanket ban on the right of any convicted prisoner to be able to vote, irrespective of the nature and circumstances of their offence.
I do not want to hide that I have been disappointed by statements made by parliamentarians and others on this issue. Universal suffrage is a fundamental principle in a democracy. As the Canadian Supreme Court stated when it ruled nine years ago that prisoners should be able to vote: it is necessary to confirm that “everyone is equally worthy and entitled to respect under the law”.
My position is that a blanket, automatic ban does indeed violate basic principles. If deprivation of the right to vote is to be a punishment then this should be expressly spelled out in each individual case by a judicial authority. Moreover, there should be a logical link between the nature of the crime and this particular punishment.
In fact, several other states in Europe – among them Denmark, the Netherlands and Switzerland – do allow prisoners to vote with the rest of the population. This is a non-issue in these countries. Why is the UK so different?
The UK Chairmanship and the Human Rights Act
The United Kingdom has recently taken on the rotating six-monthly Chairmanship of the Council of Europe. The UK has put reform of the Court as a priority and I welcome this. I also welcome the constructive framework within which the question of reform is being pursued. The Foreign Secretary has made it clear that concerns about the Court are intended to emphasise rather than to undermine the UK government’s absolute commitment to the ECHR, and to ‘upholding the rights and freedoms set out in the Convention’.
It so happens that the Chairmanship coincides with a discussion about the Human Rights Act. The Convention rights became part of UK law when Parliament adopted the Human Rights Act.
The Act has been applied in a series of important judgments. UK courts have taken into account decisions of the European Court of Human Rights, alongside traditional British common law liberties, to protect vulnerable individuals and to uphold basic rights.
The Deputy Prime Minister made this helpful remark in a speech earlier this year: “The Human Rights Act and the European Convention on Human Rights have been instrumental in preventing local authorities from snooping on law-abiding families, in removing innocent people from the national DNA database, in preventing rapists from cross-examining their victims in court, in defending the rights of parents to have a say in the medical treatment of their children, in holding local authorities to account where they have failed to protect children from abuse, in protecting the anonymity of journalists’ sources, and in upholding the rights of elderly married couples to be cared for together in care homes.”
Today, the UK courts are looked to by courts far outside Europe when they apply human rights law. Our distinguished Chair this evening, Lord Justice Sedley, has been an author of some of these important judgments.
With the Human Rights Act the UK has found innovative and positive ways of combining its own long-established legal and political traditions with the modern expression of human rights principles set out in the Convention. The Act upholds parliamentary sovereignty while strengthening the doctrine of the separation of powers by giving some more authority to the judiciary.
It enables individuals to seek remedies at the national level, rather than having to go straight to Strasbourg. In the past, the UK was one of the countries with the most cases pending before the European Court: the HRA has changed this.
The prestigious Joint Parliamentary Committee for Human Rights, which scrutinises draft legislation to check its compatibility with the Convention, has rightly concluded that the UK ‘can generally be proud of its record on national implementation of the Convention’.
For most people the impact of the Human Rights Act has probably been less from the courts, and more from the requirement that public authorities in general respect human rights in everything they do.
Service users can now use human rights arguments if they are abused, or if they are excluded from decisions about their own care, or if their needs – for adequate care or humane and dignified treatment – are ignored. I know this has had considerable impact.
Protecting Established Standards
While in Belfast the other day, I met politicians and representatives of civil society and the newly appointed members of the NI Human Rights Commission. Their common message was the centrality of human rights to peace building and the importance of maintaining and building on the advances to date. They expressed grave concerns about any potential changes to the Human Rights Act or weakening of its protections.
As Commissioner I share this concern. Any weakening of the human rights protections in the Act would be noted outside the UK, and welcomed by less democratic states as tacit encouragement to weaken their own human rights protections. What the UK does today will send a powerful signal to other states about what they can do tomorrow.
It is vital that the UK use its current chairmanship of the Council of Europe to good effect in promoting our common goals of securing democracy, the rule of law and universal human rights. This country is widely respected across Europe for its long and strong tradition of upholding civil liberties and it therefore has a vital role to play in securing and indeed improving on European human rights standards.
Needless to say a UK foreign policy devoted to human rights will only be seen as legitimate to the extent that it also reflects an active human rights policy at home: foreign and domestic policies are inter-twined in this regard. I have said elsewhere that there are no grounds for complacency about human rights across Europe.
This is as true for the UK as any other member state.
MPs' expenses: jailed trio ordered to pay back legal costs
MPs' expenses: jailed trio ordered to pay back legal costs
Three former Labour MPs who were jailed for fiddling their expenses have been ordered to pay back a total of £125,000 – less than half of the money spent on their court cases.
(Clockwise from top left) Elliot Morley, David Chaytor, Eric Illsley and Jim Devine
But a fourth disgraced politician was spared any repayment on the grounds he is already bankrupt.
Elliot Morley, David Chaytor and Eric Illsley, exposed for claiming too much on their Parliamentary allowances after the landmark investigation by The Daily Telegraph, were told by a judge they must give back their legal aid funds and contribute to prosecution costs.
They have already been denied the “parachute” payments given to most MPs when they leave Westminster, and forced to pay back their fraudulently claimed expenses.
Mr Justice Saunders told Southwark Crown Court: “As a starting point there is no reason why a convicted defendant should not pay costs. It is their unlawful behaviour which has caused the prosecuting authorities to incur expense and ultimately, if not paid for by the defendant, will be met by the taxpayer.
“At a time when there is concern at the size of the legal aid expenditure there is no reason why the tax payer should pay for the legal representations of people who can afford to pay themselves.”
However he said they should not have to pay for the costs of their unsuccessful challenge, taken to the highest courts in the land, when they had argued that they were exempt from prosecution under Parliamentary privilege.
“Although the defendants were unsuccessful in all courts that does not mean that it was not an important point of law.
“Where in the criminal jurisdiction a case raises a point of law of general public importance in my judgement it may not be reasonable to require the defendants to pay the costs of their part in establishing this important point of law of public importance.”
Until the scandal was uncovered by this newspaper in 2009, MPs were all paid more than £60,000 a year and under a lax self-regulated system were allowed to claim tens of thousands pounds more for the upkeep of their second homes and offices, often without submitting receipts.
Several politicians were investigated by the Metropolitan Police and Chaytor, the former MP for Bury North, Lancs, was jailed for 18 months in January after admitting submitting false invoices totalling £18,350 on the first day of his trial.
He was told to pay back prosecution costs of £23,176 and legal aid of £23,036.
Illsley, the former MP for Barnsley Central, was jailed for 12 months in February after pleading guilty to claiming £14,500 of fraudulent second home expenses.
He was told to pay prosecution costs of £12,178 and legal aid costs of £10,909.
Morley, a former environment minister who claimed £31,000 on a mortgage that had already been paid off, was jailed for 16 months in May.
He was ordered to pay back prosecution costs of £23,176 and legal aid costs of £33,005.
In total they were told to pay back £125,481 of the costs of the money spent on their prosecution and defence cases, which totalled almost £350,000.
Devine, the former Labour MP for Livingston and the only one whose case went to a jury trial, was jailed for 16 months in May for submitting false invoices totalling £8,385.
But the court was told that any repayment order would only deprive his other creditors of the money he owed them. He has not paid Parliament back his expenses either.
The judge said: “It seems unlikely that he will have anything left by the time his debts are paid off... It would be pointless to make an order for prosecution costs against him.”
None of the four former MPs, who were all released from jail early under a curfew scheme, appeared in court on Thursday.
Three former Labour MPs who were jailed for fiddling their expenses have been ordered to pay back a total of £125,000 – less than half of the money spent on their court cases.
But a fourth disgraced politician was spared any repayment on the grounds he is already bankrupt.
Elliot Morley, David Chaytor and Eric Illsley, exposed for claiming too much on their Parliamentary allowances after the landmark investigation by The Daily Telegraph, were told by a judge they must give back their legal aid funds and contribute to prosecution costs.
They have already been denied the “parachute” payments given to most MPs when they leave Westminster, and forced to pay back their fraudulently claimed expenses.
Mr Justice Saunders told Southwark Crown Court: “As a starting point there is no reason why a convicted defendant should not pay costs. It is their unlawful behaviour which has caused the prosecuting authorities to incur expense and ultimately, if not paid for by the defendant, will be met by the taxpayer.
“At a time when there is concern at the size of the legal aid expenditure there is no reason why the tax payer should pay for the legal representations of people who can afford to pay themselves.”
However he said they should not have to pay for the costs of their unsuccessful challenge, taken to the highest courts in the land, when they had argued that they were exempt from prosecution under Parliamentary privilege.
“Although the defendants were unsuccessful in all courts that does not mean that it was not an important point of law.
“Where in the criminal jurisdiction a case raises a point of law of general public importance in my judgement it may not be reasonable to require the defendants to pay the costs of their part in establishing this important point of law of public importance.”
Until the scandal was uncovered by this newspaper in 2009, MPs were all paid more than £60,000 a year and under a lax self-regulated system were allowed to claim tens of thousands pounds more for the upkeep of their second homes and offices, often without submitting receipts.
Several politicians were investigated by the Metropolitan Police and Chaytor, the former MP for Bury North, Lancs, was jailed for 18 months in January after admitting submitting false invoices totalling £18,350 on the first day of his trial.
He was told to pay back prosecution costs of £23,176 and legal aid of £23,036.
Illsley, the former MP for Barnsley Central, was jailed for 12 months in February after pleading guilty to claiming £14,500 of fraudulent second home expenses.
He was told to pay prosecution costs of £12,178 and legal aid costs of £10,909.
Morley, a former environment minister who claimed £31,000 on a mortgage that had already been paid off, was jailed for 16 months in May.
He was ordered to pay back prosecution costs of £23,176 and legal aid costs of £33,005.
In total they were told to pay back £125,481 of the costs of the money spent on their prosecution and defence cases, which totalled almost £350,000.
Devine, the former Labour MP for Livingston and the only one whose case went to a jury trial, was jailed for 16 months in May for submitting false invoices totalling £8,385.
But the court was told that any repayment order would only deprive his other creditors of the money he owed them. He has not paid Parliament back his expenses either.
The judge said: “It seems unlikely that he will have anything left by the time his debts are paid off... It would be pointless to make an order for prosecution costs against him.”
None of the four former MPs, who were all released from jail early under a curfew scheme, appeared in court on Thursday.
Thursday, December 15, 2011
European court backs British judges over hearsay evidence
European court backs British judges over hearsay evidence
European court of human rights upholds British doctor's indecent assault conviction in landmark ruling
Hearsay evidence can be used as the sole means of securing a criminal conviction where no other evidence is available, the European court of human rights (ECHR) has ruled.
The landmark decision, reversing a previous finding by the court, avoids a head-on judicial collision between the UK supreme court in London and the judges in Strasbourg.
The decision from the upper chamber of the ECHR, which deals with appeals against rulings, shows that the court has listened to objections raised in London and refined its position in the face of strong objections from British lawyers.
It is, however, only a partial vindication for the British government. The European court upheld the conviction of one appellant, Imad Al-Khawaja, and said that his right to a fair trial had not been breached. But in a second case, that of Ali Tahery, it ruled that his conviction for stabbing had been unfair because "there had not been sufficient counterbalancing factors to compensate for the difficulties caused to the defence by the admission of hearsay evidence". The UK was ordered to pay him €18,000 (£15,000) in costs and damages.
Ministers and the supreme court had eagerly awaited the Strasbourg judgment for the past two years. It resulted from a challenge to the original finding by the UK's most senior judges, who felt that the original decision threatened to undermine the authority of the UK's criminal courts.
The protracted wait for the decision stoked up political resentment against Strasbourg. The court has been struggling to deal with a massive backlog of unresolved cases.
If the decision on Al-Khawaja had gone the other way it would have provoked a furious outburst of anti-European sentiment within senior legal circles and among government ministers.
In its decision on Al-Khawaja, the ECHR said that there had been no breach of his rights under article six of the European convention of human rights, which guarantees the right to a fair trial.
Al-Khawaja, 53, is a British national living in Brighton. "While working as a consultant physician he was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis," the judgment said.
"One of the complainants, ST, committed suicide (taken to be unrelated to the assault) before the trial. Prior to her death she had made a statement to the police.
"At the trial it was decided that ST's statement should be read to the jury. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence.
"In his summing up, the trial judge reminded the jury that they had not seen ST give evidence or be cross-examined and that the allegations were denied.
"Mr Al-Khawaja was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to a 15-month custodial sentence on the first count and a 12-month custodial sentence on the second count, to run consecutively." That trial, the Strasbourg court said, had been fair.
Comment: I don't like the idea of a conviction based solely upon hearsay evidence. It could lead to convictions based upon a rumour. It also goes against the principle of guilt beyond all reasonable doubt. It is a pity that the ECtHR saw fit to accomodate the UK and the UKSC. It leaves me with the feeling that the ECtHR has been corrupted by the UK.
European court of human rights upholds British doctor's indecent assault conviction in landmark ruling
Hearsay evidence can be used as the sole means of securing a criminal conviction where no other evidence is available, the European court of human rights (ECHR) has ruled.
The landmark decision, reversing a previous finding by the court, avoids a head-on judicial collision between the UK supreme court in London and the judges in Strasbourg.
The decision from the upper chamber of the ECHR, which deals with appeals against rulings, shows that the court has listened to objections raised in London and refined its position in the face of strong objections from British lawyers.
It is, however, only a partial vindication for the British government. The European court upheld the conviction of one appellant, Imad Al-Khawaja, and said that his right to a fair trial had not been breached. But in a second case, that of Ali Tahery, it ruled that his conviction for stabbing had been unfair because "there had not been sufficient counterbalancing factors to compensate for the difficulties caused to the defence by the admission of hearsay evidence". The UK was ordered to pay him €18,000 (£15,000) in costs and damages.
Ministers and the supreme court had eagerly awaited the Strasbourg judgment for the past two years. It resulted from a challenge to the original finding by the UK's most senior judges, who felt that the original decision threatened to undermine the authority of the UK's criminal courts.
The protracted wait for the decision stoked up political resentment against Strasbourg. The court has been struggling to deal with a massive backlog of unresolved cases.
If the decision on Al-Khawaja had gone the other way it would have provoked a furious outburst of anti-European sentiment within senior legal circles and among government ministers.
In its decision on Al-Khawaja, the ECHR said that there had been no breach of his rights under article six of the European convention of human rights, which guarantees the right to a fair trial.
Al-Khawaja, 53, is a British national living in Brighton. "While working as a consultant physician he was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis," the judgment said.
"One of the complainants, ST, committed suicide (taken to be unrelated to the assault) before the trial. Prior to her death she had made a statement to the police.
"At the trial it was decided that ST's statement should be read to the jury. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence.
"In his summing up, the trial judge reminded the jury that they had not seen ST give evidence or be cross-examined and that the allegations were denied.
"Mr Al-Khawaja was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to a 15-month custodial sentence on the first count and a 12-month custodial sentence on the second count, to run consecutively." That trial, the Strasbourg court said, had been fair.
Comment: I don't like the idea of a conviction based solely upon hearsay evidence. It could lead to convictions based upon a rumour. It also goes against the principle of guilt beyond all reasonable doubt. It is a pity that the ECtHR saw fit to accomodate the UK and the UKSC. It leaves me with the feeling that the ECtHR has been corrupted by the UK.
Wednesday, December 14, 2011
ECtHR: Overworked but vitally important
ECtHR: Overworked but vitally important
By Emma Bonino and James A. Goldston
The European Court of Human Rights urgently needs reform if it is not to fall victim to its own success.
The European Court of Human Rights (ECtHR), the premier human-rights tribunal in the world, is under siege, but not from enemies. A victim of its own success, the court is collapsing under the weight of more than 160,000 pending applications, with 50,000 new ones lodged every year.
The moment for action may be at hand: this month, the UK assumed for six months the chair of the Committee of Ministers, the Council of Europe's highest decision-making body, pledging to secure a package of reforms.
The UK has yet to put forward firm proposals, but the coalition government has indicated it is considering, among others, steps to give the court more control over its overwhelming docket.
This UK government is not the most likely champion of the ECtHR: David Cameron, the prime minister, has made it clear he thinks the ECtHR has overreached itself, most famously in a 2005 ruling against a blanket British ban on prisoners' voting, which the UK has yet to implement.
But what is more important than the specifics presented by the UK is the broader impetus behind the proposals, which would in any case require the approval of all 47 member states. This push to reduce the court's caseload, and other problems, may determine whether the Strasbourg court lives or dies.
Founded in 1950, out of the ashes of the war, the court was a potent symbol of Europe's renewed commitment to the rule of law. Over time, it has become an extraordinary safeguard of individual liberty.
The court has issued numerous landmark judgments establishing principles not just of European, but of international, significance. The court held that some of the techniques by the British in Northern Ireland in the 1970s constituted torture. And in cases from Russia, Turkey, and points in between, it has breathed life into the central promises of a civilised society, including the right to a fair trial and access to a lawyer.
The court has pioneered a model of international justice that today sets the standard for institutions in Africa, the Americas and The Hague. And now, because of the Lisbon treaty, the EU itself will soon be subject to Strasbourg's edicts, through its accession to the European Convention on Human Rights.
But the court is being asked to do too much. Around 90% of the docket consists of cases that are manifestly unfounded or that raise issues previously decided upon.
A single court can hardly fix all the problems that afflict many of Europe's 800 million citizens. Nor should it try. The ECHR should be a backstop for national courts, which have primary responsibility for protecting rights. The court must be able to focus on problems of particular gravity or Europe-wide importance.
The Committee of Ministers of the Council of Europe must be more active in overseeing implementation of the court's judgments – thousands remain unexecuted – with the introduction of penalties for states that ignore its rulings. Ultimately, the greatest protection against overuse of the ECtHR is an improvement in the quality of justice administered in member states.
Finally, the process of judicial selection must be standardised, made more transparent and grounded in merit, not politics.
Few states want a vibrant judiciary looking over their shoulders, but the reforms must not be used as a wedge to weaken the ECtHR. Critics, in the UK and elsewhere, argue that the court's powers should be reduced because of isolated instances of overreach. But the ECHR has been right on the big issues, and has deepened European democracy and expanded Europeans' rights.
Some states may baulk at the cost of European justice. The court, though, is a good investment. For €60 million annually – less than the International Criminal Court or the Yugoslav tribunal – the ECtHR creates value for its citizens and increases its soft power abroad.
The court has become a global public good. Reform would save and reinvigorate it.
Emma Bonino is a member of the Italian Senate and a former European commissioner. James A. Goldston is executive director of the Open Society Justice Initiative.
By Emma Bonino and James A. Goldston
The European Court of Human Rights urgently needs reform if it is not to fall victim to its own success.
The European Court of Human Rights (ECtHR), the premier human-rights tribunal in the world, is under siege, but not from enemies. A victim of its own success, the court is collapsing under the weight of more than 160,000 pending applications, with 50,000 new ones lodged every year.
The moment for action may be at hand: this month, the UK assumed for six months the chair of the Committee of Ministers, the Council of Europe's highest decision-making body, pledging to secure a package of reforms.
The UK has yet to put forward firm proposals, but the coalition government has indicated it is considering, among others, steps to give the court more control over its overwhelming docket.
This UK government is not the most likely champion of the ECtHR: David Cameron, the prime minister, has made it clear he thinks the ECtHR has overreached itself, most famously in a 2005 ruling against a blanket British ban on prisoners' voting, which the UK has yet to implement.
But what is more important than the specifics presented by the UK is the broader impetus behind the proposals, which would in any case require the approval of all 47 member states. This push to reduce the court's caseload, and other problems, may determine whether the Strasbourg court lives or dies.
Founded in 1950, out of the ashes of the war, the court was a potent symbol of Europe's renewed commitment to the rule of law. Over time, it has become an extraordinary safeguard of individual liberty.
The court has issued numerous landmark judgments establishing principles not just of European, but of international, significance. The court held that some of the techniques by the British in Northern Ireland in the 1970s constituted torture. And in cases from Russia, Turkey, and points in between, it has breathed life into the central promises of a civilised society, including the right to a fair trial and access to a lawyer.
The court has pioneered a model of international justice that today sets the standard for institutions in Africa, the Americas and The Hague. And now, because of the Lisbon treaty, the EU itself will soon be subject to Strasbourg's edicts, through its accession to the European Convention on Human Rights.
But the court is being asked to do too much. Around 90% of the docket consists of cases that are manifestly unfounded or that raise issues previously decided upon.
A single court can hardly fix all the problems that afflict many of Europe's 800 million citizens. Nor should it try. The ECHR should be a backstop for national courts, which have primary responsibility for protecting rights. The court must be able to focus on problems of particular gravity or Europe-wide importance.
The Committee of Ministers of the Council of Europe must be more active in overseeing implementation of the court's judgments – thousands remain unexecuted – with the introduction of penalties for states that ignore its rulings. Ultimately, the greatest protection against overuse of the ECtHR is an improvement in the quality of justice administered in member states.
Finally, the process of judicial selection must be standardised, made more transparent and grounded in merit, not politics.
Few states want a vibrant judiciary looking over their shoulders, but the reforms must not be used as a wedge to weaken the ECtHR. Critics, in the UK and elsewhere, argue that the court's powers should be reduced because of isolated instances of overreach. But the ECHR has been right on the big issues, and has deepened European democracy and expanded Europeans' rights.
Some states may baulk at the cost of European justice. The court, though, is a good investment. For €60 million annually – less than the International Criminal Court or the Yugoslav tribunal – the ECtHR creates value for its citizens and increases its soft power abroad.
The court has become a global public good. Reform would save and reinvigorate it.
Emma Bonino is a member of the Italian Senate and a former European commissioner. James A. Goldston is executive director of the Open Society Justice Initiative.
Tuesday, December 13, 2011
A day late but what the hell...
A day late but what the hell...
Norway Spruce, 8ft, £26, lights already up and flashing away merrily. Living room has that distinctive pine needle smell.
Norway Spruce, 8ft, £26, lights already up and flashing away merrily. Living room has that distinctive pine needle smell.
Monday, December 12, 2011
Could the ECtHR's decision on Thursday lead to the UK leaving the Convention?
Could the ECtHR's decision on Thursday lead to the UK leaving the Convention?
Strasbourg's ruling on hearsay evidence could change its relationship with UK
The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence
Judges at the European court of human rights. Photograph: Vincent Kessler/Reuters
Once again I find myself challenging the so-called legal expert and legal commentator Joshua Rozenberg. The ECtHR's rulings do not change its relationship with any of the 47 Member States within the Council of Europe. Therefore, to claim otherwise is plainly false. It is the UK's relationship with the Court that has changed over the years. For example, choosing to ignore implementing those decisions of the Court it thought it should not have lost.
It is not just the headline which is wrong but also the subheading. The Court is not considering a challenge by the UK Supreme Court, simply because the Court only has jurisdiction to consider challenges by individuals from Member States or Member States challenging other Member States.
The UK has challenged the Chamber decision in Al-Khawaja and Tahery v. the United Kingdom upon appeal to the Grand Chamber. The UK Supreme Court has no jurisdiction to challenge the ECtHR, simply because the latter is the highest court in Europe.
It may well be that Joshua Rozenberg is not guilty of writing the headline and subheading because in his first paragraph he writes: "On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK's relationship with the Strasbourg court". This accords with my view that rather than the Court's relationship it is the UK's relationship that is in question.
It is disgusting that the Court has taken 18 months to reach a decision which it could, in my view, have been reached in 18 days. It is arguable that the Court itself is guilty of procrastination.
Joshua Rozenberg states: "Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness's evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention".
I fail to see how denying somebody a fair trial can be in the interests of justice. I beg to differ with Joshua Rozenberg if he is stating that Article 6 of the Convention does not reflect the need for a fair trial. If he is stating that the English law exceptions are not reflected in the Convention then I agree with him. But, I would go further and state that English law is contrary to Article 6 and therefore incompatible with the Convention. Joshua Rozenberg needs to realise that those who pull their punches do not win fights. He needs to learn to call a spade a spade.
Joshua Rozenberg continues: "What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them".
In my view, it is bleeding obvious that they did not receive fair trials given that hearsay was accepted as evidence even though their lawyers could not cross-examine the witnesses.
In my view, s.2 of the HRA 1998 is incompatible with the Convention because it only requires a court to take into account an ECtHR decision whereas Article 44(1) states that the Grand Chamber decision is final. And Article 46 (1) states that the decisions are binding on Member States. The problem is that a Chamber decision is not binding until either the individual or Member State indicate no intention to appeal the decision to the Grand Chamber. Therefore whilst the courts are required to take into account the Khawaja ruling, they are not bound to follow it.
In Horncastle and Rice "the supreme court declined to follow the Strasbourg case. Dismissing the appeals, Lord Phillips, the president, said that exceptions to the hearsay rule had been approved by parliament.
"The requirement to 'take into account' the Strasbourg jurisprudence will normally result in this court applying principles that are clearly established by the Strasbourg court," Phillips acknowledged.
"There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
"This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court. This is such a case"."
It is not clear whether Lord Phillips is corrupt, too senile or too stupid to be a judge.
If the Grand Chamber had already decided and ruled on the issue then it is irrelevant that exceptions to the rule had been approved by Parliament. Parliament would be under an obligation to remove the offending exception to be compatible with the Convention. Had the Grand Chamber made its decision then and the Supreme Court refused to follow it on the basis of this judgment by Lord Phillips it would be acting unlawfully. "There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course".
It is arrogant of Lord Phillips to assume he has the jurisdiction to give the ECtHR another opportunity to reconsider its decision. Come Thursday, if the ECtHR upholds its original decision then the UKSC must follow the decision or it will be acting unlawfully.
Having said this given David Cameron's stupid performance on Friday when he exercised the veto and walked away from the EU, it may not be too long before the UK withdraws from the EU. Then I can see the UK withdrawing from the Council of Europe and ignoring any obligations under the Convention. If this happens, pity anyone foolish enough to stay in this country under a Cameron dictatorship.
Strasbourg's ruling on hearsay evidence could change its relationship with UK
The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence
Once again I find myself challenging the so-called legal expert and legal commentator Joshua Rozenberg. The ECtHR's rulings do not change its relationship with any of the 47 Member States within the Council of Europe. Therefore, to claim otherwise is plainly false. It is the UK's relationship with the Court that has changed over the years. For example, choosing to ignore implementing those decisions of the Court it thought it should not have lost.
It is not just the headline which is wrong but also the subheading. The Court is not considering a challenge by the UK Supreme Court, simply because the Court only has jurisdiction to consider challenges by individuals from Member States or Member States challenging other Member States.
The UK has challenged the Chamber decision in Al-Khawaja and Tahery v. the United Kingdom upon appeal to the Grand Chamber. The UK Supreme Court has no jurisdiction to challenge the ECtHR, simply because the latter is the highest court in Europe.
It may well be that Joshua Rozenberg is not guilty of writing the headline and subheading because in his first paragraph he writes: "On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK's relationship with the Strasbourg court". This accords with my view that rather than the Court's relationship it is the UK's relationship that is in question.
It is disgusting that the Court has taken 18 months to reach a decision which it could, in my view, have been reached in 18 days. It is arguable that the Court itself is guilty of procrastination.
Joshua Rozenberg states: "Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness's evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention".
I fail to see how denying somebody a fair trial can be in the interests of justice. I beg to differ with Joshua Rozenberg if he is stating that Article 6 of the Convention does not reflect the need for a fair trial. If he is stating that the English law exceptions are not reflected in the Convention then I agree with him. But, I would go further and state that English law is contrary to Article 6 and therefore incompatible with the Convention. Joshua Rozenberg needs to realise that those who pull their punches do not win fights. He needs to learn to call a spade a spade.
Joshua Rozenberg continues: "What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them".
In my view, it is bleeding obvious that they did not receive fair trials given that hearsay was accepted as evidence even though their lawyers could not cross-examine the witnesses.
In my view, s.2 of the HRA 1998 is incompatible with the Convention because it only requires a court to take into account an ECtHR decision whereas Article 44(1) states that the Grand Chamber decision is final. And Article 46 (1) states that the decisions are binding on Member States. The problem is that a Chamber decision is not binding until either the individual or Member State indicate no intention to appeal the decision to the Grand Chamber. Therefore whilst the courts are required to take into account the Khawaja ruling, they are not bound to follow it.
In Horncastle and Rice "the supreme court declined to follow the Strasbourg case. Dismissing the appeals, Lord Phillips, the president, said that exceptions to the hearsay rule had been approved by parliament.
"The requirement to 'take into account' the Strasbourg jurisprudence will normally result in this court applying principles that are clearly established by the Strasbourg court," Phillips acknowledged.
"There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
"This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court. This is such a case"."
It is not clear whether Lord Phillips is corrupt, too senile or too stupid to be a judge.
If the Grand Chamber had already decided and ruled on the issue then it is irrelevant that exceptions to the rule had been approved by Parliament. Parliament would be under an obligation to remove the offending exception to be compatible with the Convention. Had the Grand Chamber made its decision then and the Supreme Court refused to follow it on the basis of this judgment by Lord Phillips it would be acting unlawfully. "There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course".
It is arrogant of Lord Phillips to assume he has the jurisdiction to give the ECtHR another opportunity to reconsider its decision. Come Thursday, if the ECtHR upholds its original decision then the UKSC must follow the decision or it will be acting unlawfully.
Having said this given David Cameron's stupid performance on Friday when he exercised the veto and walked away from the EU, it may not be too long before the UK withdraws from the EU. Then I can see the UK withdrawing from the Council of Europe and ignoring any obligations under the Convention. If this happens, pity anyone foolish enough to stay in this country under a Cameron dictatorship.
Sunday, December 11, 2011
Police Officer avoids jail after unlawfully evicting family from their home
Police Officer avoids jail after unlawfully evicting family from their home
A POLICE officer has narrowly avoided jail after throwing a mother out of her home.
Sergeant Christopher Hine unlawfully evicted the woman, who was renting a bungalow from him.
A court heard off-duty Hine, 50, his partner and two other men turned up to remove Catherine Baxter from the property.
She was dragged out in tears, as shocked neighbours looked on.
Ms Baxter was receiving housing benefit and had been unable to keep up the £495-a-month rent at the property, in Mere View Avenue, Hornsea, which he needed to pay the mortgage.
Hine – Humberside Police's wildlife crime officer – has been given a four-month prison sentence, suspended for a year, ordered to carry out 200 hours of work in the community and pay £1,400 costs.
He now faces an internal disciplinary hearing and could lose his job, after appearing before Beverley magistrates for sentencing yesterday.
Roger Evans, chairman of the bench, told him: "You knew Ms Baxter intended to remain in residence, but you attended mob handed intending to evict her.
"Although there was evidence she was a bad tenant, you of all people should know you can't take the law into your own hands.
"We accept there may have been some provocation, but it is unacceptable to recover property by illegal eviction."
The officer had pleaded guilty at an earlier hearing to depriving or displacing a residential occupier from premises.
Vincent Blake-Edwards, prosecuting for East Riding Council, said the defendant had not followed legal proceedings to evict his tenant from the two-bedroom bungalow on March 14.
He said initially during the first two months of the tenancy, which started on September 16, last year, Hine and Ms Baxter got on well.
Housing benefit was to be paid direct to Hine, with the outstanding monthly amount paid by the tenant.
When Ms Baxter did not keep up her payments, she received text messages from Hine saying he was fed up and wanted the money.
She then received a notice from Hine seeking possession of the property. The council advised her about the proper eviction procedures.
In February, Hine's partner shouted through the letterbox: "We need a moving date from you or we will come and physically remove you from the property."
Ms Baxter told them she was doing her best to move, but there was a shortage of properties.
She warned: "If you continue to harass me I am calling the police, and I will drag my heels and make you get a bailiff."
Mr Blake-Barnard said Ms Baxter and her seven-year-old son were in the garden when Hine, his partner and two friends went round to the bungalow.
She screamed at them to leave, but Hine went into her home and let the others in through the front door.
Due to the stress of the situation and high blood pressure, Ms Baxter was unable to walk, but eventually made her way to the front of the bungalow. During this time, the group were bagging up her property and piling it up on the driveway.
Ms Baxter pushed past Hine while he was attempting to change the locks and crawled into the property kicking and screaming.
Hine took hold of her legs, and with the help of his partner, moved her out of the house in tears on to the doorstep.
Mr Blake-Barnard said neighbours witnessed the incident and confirmed Ms Baxter was shouting for help.
The police and ambulance service were called and Hine told a police inspector he knew he would need a court order and bailiff to evict his tenant.
Ms Baxter and her son were checked over by paramedics but were not allowed back into the bungalow.
Council officers found the mother and son a place in hostel, and they then moved into a family caravan in the area.
The court heard Ms Baxter and her son were traumatised by the experience, referring to it as "that evil day".
Nathan Moxon, defending, said Hine regretted his actions and was full of remorse.
He said: "He recognises the consequences of the offence on the victim and if he had his time over again he would have done things differently.
"He is a man of totally good character and has no previous convictions."
Mr Moxon said the defendant needed the rent to pay the mortgage on the bungalow.
Not receiving the rent was adding to his financial difficulties, but he was also seeing the property fall in to disrepair through the tenant's neglect.
Humberside Police said they would be conducting an internal investigation into the conduct of the officer now the criminal case had concluded.
"The force remains committed to ensuring that officers and staff within the organisation uphold the standards of professional behaviour required of them," a spokesman added.
Comment: It is not explained why the bent copper's partner and the two accomplices were not also charged. It does not say whether the bent copper has been suspended from duty. It does not explain who prevented the tenant from legally returning to the property. It does not explain why the bent copper and his partner were not charged with harrassment and assault.
A POLICE officer has narrowly avoided jail after throwing a mother out of her home.
Sergeant Christopher Hine unlawfully evicted the woman, who was renting a bungalow from him.
A court heard off-duty Hine, 50, his partner and two other men turned up to remove Catherine Baxter from the property.
She was dragged out in tears, as shocked neighbours looked on.
Ms Baxter was receiving housing benefit and had been unable to keep up the £495-a-month rent at the property, in Mere View Avenue, Hornsea, which he needed to pay the mortgage.
Hine – Humberside Police's wildlife crime officer – has been given a four-month prison sentence, suspended for a year, ordered to carry out 200 hours of work in the community and pay £1,400 costs.
He now faces an internal disciplinary hearing and could lose his job, after appearing before Beverley magistrates for sentencing yesterday.
Roger Evans, chairman of the bench, told him: "You knew Ms Baxter intended to remain in residence, but you attended mob handed intending to evict her.
"Although there was evidence she was a bad tenant, you of all people should know you can't take the law into your own hands.
"We accept there may have been some provocation, but it is unacceptable to recover property by illegal eviction."
The officer had pleaded guilty at an earlier hearing to depriving or displacing a residential occupier from premises.
Vincent Blake-Edwards, prosecuting for East Riding Council, said the defendant had not followed legal proceedings to evict his tenant from the two-bedroom bungalow on March 14.
He said initially during the first two months of the tenancy, which started on September 16, last year, Hine and Ms Baxter got on well.
Housing benefit was to be paid direct to Hine, with the outstanding monthly amount paid by the tenant.
When Ms Baxter did not keep up her payments, she received text messages from Hine saying he was fed up and wanted the money.
She then received a notice from Hine seeking possession of the property. The council advised her about the proper eviction procedures.
In February, Hine's partner shouted through the letterbox: "We need a moving date from you or we will come and physically remove you from the property."
Ms Baxter told them she was doing her best to move, but there was a shortage of properties.
She warned: "If you continue to harass me I am calling the police, and I will drag my heels and make you get a bailiff."
Mr Blake-Barnard said Ms Baxter and her seven-year-old son were in the garden when Hine, his partner and two friends went round to the bungalow.
She screamed at them to leave, but Hine went into her home and let the others in through the front door.
Due to the stress of the situation and high blood pressure, Ms Baxter was unable to walk, but eventually made her way to the front of the bungalow. During this time, the group were bagging up her property and piling it up on the driveway.
Ms Baxter pushed past Hine while he was attempting to change the locks and crawled into the property kicking and screaming.
Hine took hold of her legs, and with the help of his partner, moved her out of the house in tears on to the doorstep.
Mr Blake-Barnard said neighbours witnessed the incident and confirmed Ms Baxter was shouting for help.
The police and ambulance service were called and Hine told a police inspector he knew he would need a court order and bailiff to evict his tenant.
Ms Baxter and her son were checked over by paramedics but were not allowed back into the bungalow.
Council officers found the mother and son a place in hostel, and they then moved into a family caravan in the area.
The court heard Ms Baxter and her son were traumatised by the experience, referring to it as "that evil day".
Nathan Moxon, defending, said Hine regretted his actions and was full of remorse.
He said: "He recognises the consequences of the offence on the victim and if he had his time over again he would have done things differently.
"He is a man of totally good character and has no previous convictions."
Mr Moxon said the defendant needed the rent to pay the mortgage on the bungalow.
Not receiving the rent was adding to his financial difficulties, but he was also seeing the property fall in to disrepair through the tenant's neglect.
Humberside Police said they would be conducting an internal investigation into the conduct of the officer now the criminal case had concluded.
"The force remains committed to ensuring that officers and staff within the organisation uphold the standards of professional behaviour required of them," a spokesman added.
Comment: It is not explained why the bent copper's partner and the two accomplices were not also charged. It does not say whether the bent copper has been suspended from duty. It does not explain who prevented the tenant from legally returning to the property. It does not explain why the bent copper and his partner were not charged with harrassment and assault.