Preliminary opinion of the Court in preparation for the Brighton Conference

Preliminary opinion of the Court in preparation for the Brighton Conference

Preliminary Opinion of the Court in Preparation for the Brighton Conference

For those of you in prison reading this on your mobile phones take note!

For those of you in prison reading this on your mobile phones take note!

STATUTORY INSTRUMENTS

2012 No. 584 (C. 12)

POLICE, ENGLAND AND WALES

The Crime and Security Act 2010 (Commencement No. 5) Order 2012

Made - - - - 28th February 2012

The Secretary of State for Justice makes the following Order in exercise of the power conferred by section 59(1) of the Crime and Security Act 2010(a).

1. Citation

This Order may be cited as the Crime and Security Act 2010 (Commencement No. 5) Order 2012.

2. Commencement

Section 45 of the Crime and Security Act 2010 (offences relating to electronic communications devices in prison) comes into force on 26th March 2012.

Crispin Blunt
Parliamentary Under Secretary of State

28th February 2012 Ministry of Justice

EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force section 45 of the Crime and Security Act 2010 on 26th March 2012. Section 45 amends section 40D of the Prison Act 1952 to create a new offence of possession in a prison, without authorisation, of a device capable of transmitting or receiving images, sounds or information by electronic communications. This includes mobile telephones as well as other devices which are capable of accessing the internet or are otherwise capable of sending or receiving data. The new offence extends to the possession, without authorisation, of any component part or article designed or adapted for use with such a device, such as a SIM card or a charger for a mobile telephone.

(a) 2010 c.17.

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Section 45 also makes a minor amendment to the existing offence in section 40D(1) of the Prison Act 1952. Prior to the amendment, it was an offence for a person to transmit by electronic communications “any image or any sound” from inside a prison for simultaneous reception outside a prison. The amendment extends this offence to the transmission of images, sounds or information. This amendment means that section 40D(3)(b) of the Prison Act 1952, under which it is an offence to transmit a restricted document from inside a prison, is no longer necessary. That provision is therefore repealed by section 45.

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order)

The following provisions of the Act have been brought into force by commencement order made before the date of this Order:

Provision

Date of Commencement

S.I. No.

Sections 1 to 5, 6(1), (3) and (4), and 7

7th March 2011
2011/414
Section 6(2) (partially)
7th March 2011
2011/414
Sections 34 to 36 and 39
9th January 2012
2011/3016
Sections 37 and 38
31st January 2011
2010/2989
Section 46
10th February 2011
2011/144

High Level Conference on the Future of the European Court of Human Rights

High Level Conference on the Future of the European Court of Human Rights

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High Level Conference on the Future of the European Court of Human Rights

Draft Brighton Declaration

Draft presented on 23 February 2012

The High Level Conference meeting at Brighton on 19 and 20 April 2012 at the initiative of the United Kingdom Chairmanship of the Committee of Ministers of the Council of Europe ('the Conference') declares as follows:

1. The States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention') reaffirm their deep and abiding commitment to the Convention, and to the fulfilment of their obligation under the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.

2. The right of individual application to the European Court of Human Rights ("the Court') is a key component of the machinery for protecting the rights and freedoms set forth in the Convention. The European Court of Human Rights ("the Court") has made an extraordinary contribution to the protection of human rights in Europe for over 50 years.

3. The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity. States Parties must respect the rights and freedoms guaranteed by the Convention, and must effectively resolve violations at the national level. The Court acts as a safeguard for violations that have not been remedied at national level, in accordance with its subsidiary jurisdiction to interpret and apply the Convention. Where the Court finds a violation, States Parties must abide by the final judgment of the Court.

4. The States Parties and the Court also share responsibility for ensuring the viability of the Convention mechanism. The States Parties are determined to work in partnership with the Court to achieve this, drawing also on the important work of the Parliamentary Assembly of the Council of Europe, the Commissioner for Human Rights, and other institutions and bodies of the Council of Europe, and working in a spirit of co-operation with civil society and the representatives of applicants to the Court.

5. The High Level Conference at Interlaken ("the Interlaken Conference') in its Declaration of 19 February 2010 noted with deep concern that the number of applications brought before the Court and that the deficit between applications Introduced and applications disposed of continued to grow. It considered that this situation caused damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represented a threat to the quality and the consistency of the case law and the authority of the Court It therefore adopted an Action Plan to address these issues.

6. The High Level Conference at Izmir ("the Izmir Conference') in its Declaration of 27 April 2011 welcomed the concrete progress achieved following the Interlaken Conference, but noted with concern the continuing increase in the number of applications brought before the Court. It considered that the provisions introduced by Protocol No. 14 to the Convention, which came into force on 1 June 2010, would not provide a lasting and comprehensive solution to the problems facing the Convention system. The Conference therefore adopted a Follow-up Plan building on the Action Plan adopted by the Interlaken Conference.

7. The States Parties are very grateful to the Swiss and Turkish Chairmanships of the Committee of Ministers for having convened these conferences, and to all those who have helped fulfil the action and follow-up plans. The results achieved within the framework of Protocol No. 14 remain broadly encouraging, particularly as a result of the measures taken by the Court and its Registry to increase efficiency and address the number of applications pending before the Court. The growing number of potentially well-founded applications pending before the Court is however a matter of deep concern.

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8. In light of the current situation of the Convention and the Court, the steps foreseen by the Interlaken and Conferences must continue to be fully implemented. Further measures are also needed to ensure that the Convention and the Court remain effective and can continue to protect the rights and freedoms of over 800 million people in Europe.

A. Implementation of the Convention at national level

9. The full implementation of the Convention at national level requires national authorities to take effective measures to prevent violations. All public officials should discharge their responsibilities, and all laws and policies should be formulated, in a way that gives full effect to the Convention.

10. National authorities must also provide means by which remedies may be sought for alleged violations of the Convention. National courts and tribunals should take into account relevant aspects of the Convention and the case law of the Court in formulating their judgments.

11. Collectively, these measures should reduce the number of violations of the Convention. They would also reduce the number of well-founded applications presented to the Court, thereby helping to control its workload.

12. The Conference therefore:

a) Affirms the strong commitment of the States Parties to fulfil their primary responsibility to implement the Convention at national level;

b) Recalls the recommendations of the Committee of Ministers to the States Parties on the implementation of the Convention at national level, and strongly encourages the States Parties to continue to take full account of these recommendations in their development of policies and practices to give effect to the Convention;

c) In particular, expresses the determination of the States Parties to ensure effective implementation of the Convention at national level by taking the following specific measures, so far as relevant

i) Establishing, if they have not already done so, an lndependent National Human Rights Institution in compliance with the Paris Principles;

ii) Implementing practical measures to ensure that policy and legislation developed by the executive of each State Party complies fully with the rights and freedoms set out in the Convention;

iii)In particular, reporting systematically to national parliaments on the compatibility of draft legislation with the Convention, and encouraging that this information be taken into account in the legislative process;

iv) Considering the introduction of new domestic legal remedies, whether of a specific or general nature, for violation of the rights and freedoms under the Convention;

v) Enabling and encouraging national courts and tribunals to take into account the relevant of the Convention, in light of the case law of the Court, in proceedings and formulating judgments;

vi) Specifically, ensuring that litigants are able, within the appropriate parameters of national judicial procedure but without unnecessary impediments, to draw to the attention of national courts and tribunals any relevant jurisprudence of the Court;

vii) Providing all public officials with relevant information about the obligations under the Convention;

viii) Training all public officials working in the justice system, responsible for law enforcement, or responsible for the deprivation of a person's liberty in how to fulfil obligations under the Convention;

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ix) Providing appropriate information and training about the Convention in the professional development of lawyers and prosecutors and, where appropriate, in the training and study of judges; and

x) Providing information on the Convention to potential applicants, particularly about the scope of its protection, the jurisdiction of the Court and the admissibility criteria;

And invites the Committee of Ministers to take account of these priorities when examining the reports provided by the States Parties on their implementation of the Declaration adopted by the Interlaken Conference; and

d) Encourages the States Parties, if they have not already done so, to:

i) Translate significant judgments of the Court and the Court's Practical Guide on Admissibility Criteria into national languages, where this is necessary for them to be properly taken into account; and

ii) Contribute to the Human Rights Trust Fund.

B. Council of Europe support for national Implementation of the Convention

13. The Council of Europe plays a crucial role in assisting and encouraging national implementation of the Convention, as part of its wider work in the field of human rights, democracy and the rule of law. The provision of technical assistance to national authorities, whether provided by independent experts or
bilaterally by the authorities of other States Parties, disseminates good practice and raises the standards of human rights observance in Europe.

14. The Conference therefore:

a) Recognises and reaffirms the importance of support by the Council of Europe for the national implementation of the Convention; expresses Its appreciation to those who arrange and participate in programmes to this end, including the Human Rights Trust Fund; and emphasises that this support should be provided in an efficient manner with reference to defined outcomes, in co-ordination with the wider work of the Council of Europe;

b) To this end, invites the Secretary General to advise how better national implementation of the Convention might be assisted and encouraged by the Council of Europe, including through:

i) Strengthening the delivery of the Council of Europe's technical assistance and co-operation programmes;

ii) Improving co-ordination between the various Council of Europe actors in the provision of assistance;

iii) Improving targeting of technical assistance, particularly by introducing a more country-specific approach to technical assistance;

iv) Implementing closer co-operation with the European Union in defining priorities and running joint programmes; and

v) Assisting the Committee of Ministers in the supervision of the execution of judgments by co-ordinating technical assistance to States Parties in respect of the implementation of judgments;

And invites the Committee of Ministers to take any consequent decisions as soon as possible;

c) Encourages all States Parties to make full use of technical assistance where required, and to give and receive bilateral technical assistance in a spirit of open co-operation for the full protection of human in Europe; and

d) Invites the Committee of Ministers to consider whether there are circumstances in which it would be appropriate to require a State Party to accept technical assistance.

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C. Interaction between the Court and national authorities

15. The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated. These responsibilities are fulfilled by the executive, legislative and judicial functions of every State Party.

16. The Court provides an authoritative interpretation of the Convention, and a safeguard for individuals whose rights and freedoms are not secured at the national level. By reviewing the actions of national authorities, the Court ensures that the States Parties are complying with their obligations under the Convention.

17. Each State Party enjoys a considerable margin of appreciation in how it applies and implements the Convention. This reflects that national authorities are in principle best placed to apply the Convention rights in the national context. The margin of appreciation implies, among other things, that it is the responsibility of democratically-elected national parliaments to decide how to implement the Convention in legislation, and for independent and impartial national courts and tribunals to apply the Convention in reasoned judgments. The role of the Court is to review decisions taken by national authorities to ensure that they are within the margin of appreciation.

18. The States Parties and the Court therefore have a joint responsibility to ensure the effectiveness of the Convention system, and must work together in a spirit of co-operation to achieve this.

19. The Conference therefore:

a) Welcomes the development by the Court ln its case law of principles such as subsidiarity and the margin of appreciation which clarify the nature of the Court's role; and encourages the Court to give great prominence to these principles in its judgments;

b) Concludes that the transparency and accessibility ofthe principles of subsidiarity and the margin of appreciation should be enhanced by their express inclusion in the Convention; and invites the Committee of Ministers to adopt the necessary amending instrument within one year;

c) Encourages a strong and open dialogue between the Court and national authorities as a means of developing an enhanced understanding of their respective roles in carrying out their shared responsibility for applying the Convention; and in particular welcomes and encourages further development of the dialogues between the Court and:

i) The highest courts of the States Parties, both through their judgments and in meetings;

ii) The Steering Committee for Human Rights on the principle of subsidiarity and on the clarity and consistency of the Court's case-law; and

iii) Government Agents on procedural issues, including consultation on proposals to amend the Rules of Court;

d) Concludes that, to clarify the respective roles of the Court and national judicial systems, the Court should be further enabled to deliver advisory opinions as follows:

i) For those States Parties that opt in, the highest national courts should have discretion to refer a point of interpretation of the Convention to the Court for an advisory opinion on the context of a specific case;

ii) The national court should set out the facts of the case as well as the question of interpretation of the Convention that the case raises and should give its own view on the question referred;

iii) The Court should give its opinion on the point of interpretation raised; leaving it to the national court to apply this to the facts of the case;

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iv) Advisory opinions should not be binding; but when applied by the national court the individual in whose case the opinion was sought should ordinarily have no further right to make an application to the Court on the same matter;

And invites the Committee of Ministers to adopt the necessary amending instrument within one year; and

e) Recalls that the Izmir Conference invited the Committee of Ministers to consider further the question of interim measures under Rule 39 of the Rules of the Court; invites the Committee of Ministers to assess both whether there has been a significant reduction in their numbers and whether applications in which interim measures are applied are now dealt with speedily; and to propose any necessary action.

D. Applications to the Court

20. The right of Individual application is a cornerstone of the Convention system. In principle, any person may apply to the Court on the basis that their rights and freedoms as set forth in the Convention have been violated. The right to present an application to the Court should be practically realisable, and States Parties must ensure that they do not hinder in any way the effective exercise of this right.

21. The admissibility criteria in Article 35 of the Convention define the applications the merits of which the Court should consider. The criteria relate to the substance of an application, as well as procedural requirements. The admissibility criteria should provide the Court with practical tools to ensure that it adjudicates only those cases in which the principle or the significance of the violation warrants consideration by the Court. They should also help regulate the number of cases before the Court.

22. It is therefore also important that the Court continues to apply strictly the admissibility criteria, in order to reinforce confidence in the rigour of the Convention system and to ensure that unnecessary pressure is not placed on its workload. The assessment of the admissibility of an application should always be undertaken by the Court with regard to the individual circumstances of the application.

23. The Conference therefore:

a) Concludes that the time limit under Article 35(1) of the Convention within which an application must be made to the Court should be shortened to [two OR three OR four] months; and invites the Committee of Ministers to adopt the necessary amending instrument within one year;

We present the options in this paragraph as alternatives

b) Concludes that Article 35(3)(b) of the Convention should be amended to remove the words "and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal'; and invites the Committee of Ministers to adopt the necessary amending instrument within one year;

c) Concludes that Article 35 of the Convention should further be amended to make clear that an application is inadmissible if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention, unless the Court considers that:

i) The national court clearly erred in its interpretation or application of the Convention rights; or

ii) The application raises a serious question affecting the interpretation or application of the Convention;

And invites the Committee of Ministers to adopt the necessary amending instrument within one year;

d) Stresses the importance of the strict application of the admissibility criteria, both to ensure the efficient application of justice and to safeguard the respective roles of the Court and national authorities;

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e) Welcomes the increased provision by the Court of information to applicants on its procedures, and particularly on the admissibility criteria;

f) Invites the Court to make specific provision in the Rules of Court for a separate decision to be made on admissibility at the request of the respondent Government when there is a particular interest in having the Court rule on the effectiveness of a domestic remedy which is at issue in the case; and

g) Invites the Court to develop its case law on exhaustion of domestic remedies so as to require the Convention rights at issue in an application to have been raised formally in domestic proceedings.

E. Processing of applications

24. The number of applications to the Court continues to increase. Very large numbers of applications are now pending before all of the Court's primary judicial formations. Many applicants, especially those with a potentially well-founded application, are obliged to wait for many years for a response to their application.

25. In light of the importance of the right of individual application, the Court must be able to dispose of inadmissible applications as efficiently as possible, with the least impact on its resources. The Court has already taken significant steps to achieve this within the framework of Protocol No. 14, which are to be applauded.

26. Repetitive applications mostly arise from systemic or structural issues at the national level. It is the responsibility of a State Party, under the supervision of the Committee of Ministers, to ensure that such issues and resulting violations are resolved as part of the effective execution of judgments of the Court.

27. In addition, the increasing number of cases pending before the Chambers of the Court is also a matter of serious concern. The Court should be able to focus its attention on potentially well-founded new violations.

28. The Conference therefore:

a) Strongly welcomes the advances made by the Court in its processing of applications, particularly the adoption of:

i) Its priority policy, which has helped it focus on the most important and serious cases; and

ii) New working methods, which streamline procedures particularly for the handling of inadmissible and repetitive cases, while maintaining appropriate judicial oversight;

b) Notes with great appreciation the Court's assessment that it can dispose of the outstanding clearly inadmissible applications pending before it by 2015; welcomes that this has been achieved in part by the secondment of national judges and high-level lawyers to the Registry of the Court; and encourages the States Parties to arrange further secondments in order to assist the Court in disposing of the outstanding clearly inadmissible applications;

c) Expresses continued concern about the large number of repetitive applications pending before the Court; welcomes the continued use by the Court of proactive measures, particularly pilot judgments, to dispose of repetitive violations in an efficient manner; encourages national authorities to work in a spirit of proactive co-operation with the Court to resolve large numbers of applications arising from systemic issues identified by the Court;

d) Notes with interest the intention of the Court to consider the introduction of a system of "default judgments' to deal with clearly repetitive cases that have not received redress within a fixed period;

e) and invites the Court to consult representatives of applicants and the States Parties in its consideration;

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e) Invites the Committee of Ministers to consider whether further provision is required in the Convention to allow the Court to consider representative applications in respect of alleged violations that would affect a large number of potential applicants;

OR

f) Concludes that the Convention should be amended to allow for the appointment of additional judges to the Court with competence to determine clearly inadmissible and repetitive applications if at any time it appears that, in the view of the Committee of Ministers on the advice of the Court, the Court will not dispose of the outstanding clearly inadmissible applications pending before it in a reasonable time, or the adjudication of inadmissible and repetitive applications is seriously impairing the ability of the Chambers of the Court to determine cases pending before them;

Concludes that the Convention should be amended to allow for the appointment for a defined period of additional judges to the Court if at any time it appears that, in the view of the Committee of Ministers on the advice of the Court, the Court cannot by any other means respond to applications pending before the Chambers of the Court in a reasonable time;

We present the two proposals above as alternatives
.
g) Welcomes the Court's intention to consider applying a broader interpretation of the concept of well-established case-law within the meaning of Article 28(1) of the Convention, so as to adjudicate more cases under a summary Committee procedure;

h) Invites the Court to consider, in partnership with Government Agents and the representatives of applicants, whether:

i) Decisions and judgments of the Court could be made available to the parties to the case a short period of time before their delivery in public;

ii) The claim for and comments on just satisfaction and costs could be exchanged earlier in proceedings before the Chamber and Grand Chamber; and

iii) Further measures could be put in place to encourage applications to be made online, and the procedure for the communication of cases consequently simplified;

i) Reaches these conclusions with the intention that, with the full implementation of these measures with appropriate resources, the Court should be able to place all completed applications before a judicial formation within one year, and should be able to make all communicated cases the subject of a decision within two years of communication;

j) Further expresses the commitment of the States Parties to work in partnership with the Court to achieve these outcomes; and

k) Invites the Committee of Ministers, when adopting these measures, to determine criteria by which to assess whether, by 2015, further measures are required to enable the Court successfully to address its workload.

F. Judges and jurisprudence of the Court

29. The authority and credibility of the Court depend in large part on the quality of its judges and the judgments they deliver.

30. The high calibre of judges elected to the Court depends in tum primarily on the quality of the candidates that are proposed to the Parliamentary Assembly for election. The States Parties' role in proposing candidates of the highest possible quality is therefore of fundamental importance to the continued success of the Court.

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31. Judgments of the Court need to be both clear and consistent. This promotes legal certainty. It is particularly important when the Court deals with issues of general principle or where there are several cases dealing with differing aspects of the same issue. Clarity as to how principles set out in earlier case law are affected, if at all, by a new judgment enables potential applicants to assess more accurately the prospects of successfully bringing an application. It also allows the national authorities, including courts, to understand and apply the Convention, and in particular the full extent of their margin of appreciation, more precisely as they discharge their primary responsibility for securing the Convention rights. The Court has indicated that it is considering an amendment to the Rules of Court making it obligatory for a Chamber to relinquish jurisdiction where it envisages departing from settled case law.

32. A stable judiciary promotes the consistency of the Court It is therefore in principle undesirable for any judge to serve less than the full term of office provided for in the Convention.

33. The Conference therefore:

a) [Welcomes the adoption by the Committee of Ministers of] the Guidelines on the selection of candidates for the post of judge at the European Court of Human Rights; encourages the States Parties to implement them effectively; and invites the Committee of Ministers to review the extent to which they are applied;]

Pending the adoption of these guidelines by the Committee of Ministers

b) Welcomes the success to date of the Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights; notes that the Committee of Ministers has decided to review the functioning of the Advisory Panel after an initial three-year period; and invites the Parliamentary Assembly and the Committee of Ministers to discuss how the procedures for electing judges can be further improved;

c) Welcomes the steps that the Court is taking to maintain and enhance the high quality of its judgments and in particular to ensure that the clarity and consistency of judgments are increased even further;

d) In particular, invites the Court to have regard to the importance of consistency where judgments relate to aspects of the same issue, so as to ensure their cumulative effect continues to afford States Parties an appropriate margin of appreciation;

e) In light of the central role played by the Grand Chamber in achieving consistency in the Court's jurisprudence, concludes that Article 30 of the Convention should be amended to remove the words "unless one of the parties to the case objects'; invites the Committee of Ministers to adopt the necessary amending instrument within one year; and expresses the intention of the States Parties to refrain from objecting to any proposal for relinquishment by a Chamber pending the entry into force of the amending instrument;

f) Invites the Court to consider whether the composition of the Grand Chamber would be enhanced by the ex officio inclusion of the Vice Presidents of each Section;

g) Welcomes the Court's long-standing recognition that it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart without cogent reason from precedents laid down in previous cases; and reaffirms the importance of these considerations, which imply that principles established in the Court's case law should be clearly and precisely expressed,
consistently applied in future cases, and departed from only in exceptional circumstances;

h) Affirms that the requirement for consistency in the application of the Convention does not of itself imply any requirement for uniformity in the way the Convention is implemented in each State Party; and

i) Concludes that Article 23(2) of the Convention should be amended to replace the age limit for judges by a requirement that judges must be no older than 65 years of age at the date on which their term of office commences; and invites the Committee of Ministers to adopt the necessary amending instrument within one year.

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G. Implementation of judgments of the Court

34. Each State Party has undertaken to abide by the final judgments of the Court in any case to which they are a party. Through its supervision, the Committee of Ministers ensures that proper effect is given to the judgments of the Court, including by the implementation of general measures to resolve wider systemic issues.

35. Through its procedures, the Committee of Ministers must therefore consider whether the measures taken by a State Party have effectively resolved a violation and, where this is not the case, exert effective pressure on the State Party to comply with its obligations. The Committee of Ministers should in particular take account of the number of applications to the Court that may result from a violation disclosing a systemic issue at national level, and should ensure that States Parties quickly and effectively implement pilot judgments.

36. The Conference therefore:

a) Invites the Committee of Ministers to continue to consider how to refine its procedures so as to ensure effective oversight of the execution of judgments, in particular through the further consideration of strategic and systemic issues;

b) Invites the Committee of Ministers to strengthen the publicity given to its meetings on the supervision of the execution of judgments, and to increase its engagement with civil society at those meetings;

c) Invites the Committee of Ministers to consider whether further measures or sanctions should be introduced to exert pressure on States that fail to implement judgments of the Court in a timely manner; and whether the imposition of certain sanctions should take place by default if certain criteria are met, unless the Committee of Ministers agrees that extenuating circumstances should permit their temporary suspension;

d) In particular, invites the Committee of Ministers to consider the introduction of a financial penalty where a failure to implement a judgment leads to a significant number of repetitive applications to the Court;

e) Encourages the executive authorities of States Parties to make action plans for the execution of judgments as widely accessible as possible, including through their publication in national languages; and to report each year to their national parliaments on the execution of judgments, and to encourage national parliaments to scrutinise these reports; and

f) Welcomes the Parliamentary Assembly's regular reports and debates on the execution of judgments.

H. Longer-term future of the Convention system and the Court.

37. This Declaration addresses the immediate issues faced by the Court. There will be further challenges in the longer term that must be overcome to secure the future effectiveness of the Convention system. It is therefore vital to establish a process to anticipate these challenges and develop a vision for the future of the Convention, so that future decisions are taken in a timely and coherent manner.

38. As part of this process, it will be necessary to consider the fundamental role and nature of the Court. The longer-term vision must secure the viability of the Courts key role in the system for protecting and promoting human rights in Europe. The right of individual application remains a key component of the Convention system. Future reforms must enhance the ability of the Convention system to address serious violations and effectively.

39. Effective implementation of the Convention at national level will pennit the Court in the longer term to take on a more focussed and targeted role. The Convention system must support States in fulfilling their primary responsibility to implement the Convention at national level.

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40. In response to this, the Court could in future focus its efforts on serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention. In any case, the Court should be called upon to remedy fewer violations itself, and should deliver fewer judgments; this will help to ensure that all of its judgments are significant, and consolidate its overall authority.

41. The Interlaken Conference invited the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan had improved the situation of the Court. It provided that, on the basis of this evaluation, the Committee of Ministers should decide before the end of 2015, whether there is a need for further action. It further provided that, before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary.

42. The Conference therefore:

a) Welcomes the process of reflection on the longer-term future of the Court begun at the Interlaken Conference and continued at the Izmir Conference and at the informal Wilton Park conference;

b) Invites the Committee of Ministers to determine by the end of 2012 the process by which it will fulfil its further mandates under this Declaration and the Declarations adopted by the Interlaken and Izmir Conferences;

c) Further invites the Committee of Ministers to establish a Commission to consider the future of the Convention and the Court, which should comprise an equal number of experts appointed on the basis of their personal experience by each of the Court, the Committee of Ministers, the Steering Committee for Human Rights, the Parliamentary Assembly of the Council of Europe, and the highest national courts of the States Parties, in addition to representatives of applicants to the Court and ofcivil society;

d) Proposes that this Commission should be mandated within a defined period to consider and make recommendations about the future of the Convention system, including:

i) The future challenges to the enjoyment of the rights and freedoms guaranteed by the Convention;

ii) The way in which the Court can best fulfil its twin role of providing an authoritative interpretation of the Convention, and acting as a safeguard for individuals whose rights and freedoms are not secured at the national level;
The nature of the mechanisms required, in addition to the Court, to ensure States Parties fulfil their responsibility to respect the rights and freedoms guaranteed by the Convention;

iv) The relationship between such mechanisms and other bodies and offices of the Council of Europe, including the Secretary General, the Committee of Ministers, the Parliamentary Assembly, and the Commissioner for Human Rights;

v) In addition, the relationship between such mechanisms and the national authorities, particularly the national courts and parliaments, of the States Parties; and

vi) The process by which to deliver the necessary changes.

e) Proposes that such a Commission should consider options for the future role and nature of the Court, including:

i) Giving the Court the discretion to select, with regard to defined criteria, those applications that it will consider judicially, thereby giving it complete control over its case list;

ii) In particular, mandating the Court to consider only those applications that are not the subject of well-established case law, or which respect for human rights as defined in the Convention requires it to consider; -

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Curtailing the Court's power to grant just satisfaction to applicants under Article 41 of the Convention;

iv) Introducing a Statute for the Court, or some other simplified amendment procedure for the Convention; and

v) Reviewing the procedure by which amendments to the Rules of Court are adopted.

I. General and final provisions

43. The accession of the European Union to the Convention will enhance the coherent application of human rights in Europe. The Conference therefore notes with satisfaction progress on the preparation of the draft accession agreement and calls for a swift and successful conclusion to this work.

44. Where decisions to give effect to this Declaration have financial implications for the Council of Europe, the Conference invites the Court and the Committee of Ministers to quantify these costs as soon as possible, taking into account the budgetary principles of the Council of Europe and the need for budgetary restraint.

45. The Conference:

a) Invites the United Kingdom Chairmanship to transmit the present Declaration and the Proceedings of the Conference to the Committee of Ministers;

b) Invites the States Parties, the Committee of Ministers, the Court and the Secretary General of the Council of Europe to give full effect to this Declaration; and

c) Invites the future Chairmanships of the Committee of Ministers to ensure the future impetus of the reform of the Court and the implementation of the Convention.

Police whores...? What police whores?

Police whores...? What police whores?

Lawyers order Parliament to stop publishing super-injunction document

Lawyers order Parliament to stop publishing super-injunction document

MPs and peers have been warned that they face “diplomatic repercussions” unless they remove a document detailing aspects of one of Britain’s last remaining super-injunctions from the Parliamentary record.

Below is the full text of the document which Archerfield Partners solicitors is seeking to supress.

Mark Burby—Supplementary written evidence

1. This supplementary written submission is made to the Joint Committee on Privacy &
Injunctions. It is supplementary to a written submission I made on 9 December 2011.
As such it is governed by parliamentary privilege and all or any elements of this
submission should be read in that context.

2. This is of particular importance as I am the subject of a super-injunction and, as adverted to in my preliminary submission made on 9 December 2011, the Claimant in
those proceedings and/or the Claimant’s solicitors are likely to seek to criticise me (at the very least) or to bring contempt proceedings (at the very worst) in respect of this submission to the Committee. Those proceedings, if brought, will also be in secret.

3. To that end this submission has been worded in such a way so as not to undermine the integrity of the super-injunction by which I am, in England & Wales, bound. The
wording of that super-injunction is such, however, that I am not bound by its terms
other than while in England & Wales.

4. I am a resident of the Bailiwick of Jersey.

My super-injunction

5. Firstly I deal with the case in which I am the subject of a super-injunction.

6. On 9 September 2009 a super-injunction was obtained in the Queen’s Bench Division of the English High Court on an ex parte basis by a Claimant against three Defendants – myself, my public relations consultant and the business through which he trades.

7. I am a resident of the Bailiwick of Jersey. Publication of the matters complained of was made in Jersey, both by way of newspaper and television interviews and online, although the claimants identity was not broadcasted. The only reason that my public relations consultant and the business through which he trades were joined as Defendants to these proceedings (and are thus subject to the super-injunction in question) is because they are based in England & Wales and this, in turn, gave the English courts jurisdiction over a matter that otherwise ought properly, if at all, to have been brought in the Bailiwick of Jersey.

8. The Claimant is the ex-spouse of an Asian Head of State. A Head of State that is considered a strategic ali to the UK. As these proceedings are anonymised it would clearly be inappropriate in the context of this submission to reveal her identity. I will also take careful steps to avoid calculation of her identity although it’s quite clear that there is already a significant amount of unsavoury publicity about this person already in the pubic domain. A fact that makes the superinjunction
referred to in this submission somewhat questionable.

9. There are six areas that are the subject matter of this super-injunction (as it was ordered ex parte by Mr Justice Maddison on 9 September 2009 and as affirmed by Mrs Justice Sharp after an inter partes hearing on 3 November 2009):

(a) Information/allegations concerning any personal relationship of any kind
between the Claimant and a man who is not her ex-husband;

(b) Information/allegations known or believed by the Defendants or either of them
to have been communicated by the Claimant to that same man;

(c) Information/allegations relating to steps taken by the Claimant to secure
payment of a £61m judgment debt from members of her family, of which I am
the beneficiary (including the fact that such steps have been taken at all);

(d) The fact of any details of the discussions or dealings (including alleged
discussions or dealings) between the Claimant and myself about that judgment debt and any information/allegations known or believed by the Defendants to have been communicated by the Claimant to me in the course of such discussions or dealings;

(e) Any information calculated to identify the Claimant as the claimant in English
proceedings against another individual or as the plaintiff in Australian
proceedings against another individual, whom has since been assassinated, and a
company that he controlled;

(f) Any allegation that the Claimant was involved in or responsible for that
individual’s murder.

10. The super-injunction requires that I must not, within England & Wales:

(a) Publish or disclose to any person or institution any of the information or
allegations set out above;

(b) Communicate to the Claimant (directly or indirectly) any threat to make such
publication or disclosure or any request for payment or other benefit in return
for not doing so;

(c) Otherwise harass the Claimant. (This is a key legal term that is abused in such
proceedings to imply unsavoury conduct on my part and is a very misleading
reference indeed).

11. While the first of these is clear, the latter two are not. How can it practically be determined how an indirect communication is made and I am culpable for it? What does harassment mean in this context, particularly when litigation is ongoing? This highlights the excessively broad scope that these injunctions, bolstered by a penal notice, cover.

12. It is important to reiterate that the super-injunction expressly does not bind me other than in England & Wales.

13. That said, while I reside in the Bailiwick of Jersey I have not at any time breached the super-injunction even though, for example, I could have communicated the subject matter of the super-injunction to any newspaper or broadcaster in any jurisdiction other than in England & Wales and/or published these matters online other than through an internet service provider based in England & Wales.

14. Other matters that are pleaded by the Claimant as being private and/or confidential but that are not expressly covered by the terms of the super-injunction (but are impliedly covered by it) include:

(a) Descriptions of the Claimant’s body allegedly discovered in the course of the
alleged sexual relationship with the man who is not the ex-husband of the
Claimant. Such would demonstrate that she has perjured herself when denying
that any such sexual relationship existed;

(b) That the Claimant offered that individual’s wife money to divorce him;

(c) That the Claimant had become pregnant with an illegitimate child but terminated
the pregnancy;

(d) That the Claimant had been the victim of sexual harassment by a high profile UK
Arab businessman and former proprietor of a substantial UK retailer;

(e) Descriptions of the Claimant’s feeling towards her ex-husband during and after
her marriage;

(f) Details of the Claimant’s sexual relations with her ex-husband;

(g) Details of the Claimant’s divorce and divorce settlement;

(h) That the Claimant had a sexual relationship with another individual and details of that alleged relationship while she was married;

(i) That the Claimant had a sexual relationship with one of her two solicitors and
details of that alleged relationship;

(j) That the Claimant’s ex-husband, as a Head of State, sympathised with and
supported Islamic fundamentalists;

(k) That the Claimant knew or suspected, from conversations with her ex-husband,
that there would be major terrorist attacks on the UK (7/7) and Israel;

(l) That the Claimant’s ex-husband flew a senior member of Al-Qaeda to the
country of which he is Head of State and gave him substantial funding for Al-
Qaeda.

15. Whether or not the Claimant did or did not have a relationship with the man who is not her ex-husband is, in and of itself, not a matter of public interest. It is clearly a private matter. However, it is only a matter of public interest in the context of other injunctions obtained by the Claimant in other proceedings whereby she has stated on oath that that relationship never took place and/or was not sexual in nature whenboth she and her solicitors are aware that that relationship did take place and/or was sexual nature. In other words, my position is that the Claimant – the ex-wife of a foreign Head of State – has perjured herself in these and other proceedings and she has relied on that perjury to obtain injunctive relief against me (and others). Also, the said man was committed to 3 months in Brixton prison for an alleged breach of a super-injunction because he was restrained from repeating the allegation that he did have sex with the claimant. However, the claimant failing to disclose to the High Court photographic evidence in their possession of the alleged sexual encounter when applying for super-injunctions is brushed to one side. Therefore the alleged abuse of the English courts in this manner is clearly a matter of public interest.

16. If these allegations are untrue then the proper course is for the Claimant to sue in defamation. It is striking that the Claimant has refused to confirm whether she accepts that these allegations (or any of the allegations complained of) are true or untrue. However, they state that some are true and some are false but are not required to state which under the protection of the super-injunction.

17. As for the second aspect of the allegations concerning the allegation that the Claimant had agreed to secure payment of the £61m judgment of which I am the beneficial owner, that again is surely not a matter that is properly to be classified as private such as to merit the protection of a super-injunction. If the Claimant has entered into an agreement to agree to secure payment of a judgment and has then breached that agreement then that is a question of fact properly determinable by the courts. It is not private and/or confidential information per se. The existence of the super-injunction completely interferes with the equality of arms and/or commercial negotiations that would otherwise exit between parties.

18. As for the third aspect of the allegations referred to expressly in the super-injunction concerning proceedings brought by the Claimant against an individual in England and Australia, who was subsequently assassinated, I again submit that that is not properly a matter that ought to be the subject of a super-injunction. If the allegation is true, it is plainly a matter of public interest that the ex-wife of a Head of State was involved in, responsible for or co-conspirator in the murder of this individual. If the allegation is false then it is defamatory and the applicable remedy for the Claimant ought to be in damages. However, the existence of the super injunction is suffocating the truth being either investigated or other witnesses evidence being obtained. It is further compounded by the fact the man assassinated was the subject of a similar/identical super-injection taken out by the same claimant to avoid publication of the same facts.

He was assassinated at the juncture of making an application to have the injunction
set-aside on grounds that would have, in all likeliness, been successful. This is clearly a matter of public interest.

19. As for the matters contained in the Claimant’s Particulars of Claim but which are not expressly referred to in the super-injunction (but which may, by implication, be considered also to be private and/or confidential such as to be covered by its scope):

(a) Descriptions of the Claimant’s body allegedly discovered in the course of the
alleged sexual relationship that gave rise to the super-injunction would rightly
ordinarily be considered to be private and/or confidential and properly to be
protected by injunctive relief and/or a privacy law, other than in the context of
the perjury allegation outlined above which brings the matter into the realm of
public interest;

(b) That the Claimant offered money to that individual’s wife to divorce him is,
again, (if true) ordinarily a matter that ought properly to be seen as private
and/or confidential and properly to be protected by injunctive relief and/or a
privacy law or (if false) defamatory, other than in the context of the perjury
allegation outlined above which brings the matter into the realm of public
interest;

(c) That the Claimant had become pregnant with that individual’s child but had a
termination is (if true) a matter that ought properly to be seen as private and/or
confidential and properly to be protected by injunctive relief and/or a privacy
law or (if false) defamatory, other than in the context of the perjury allegation
outlined above which brings the matter into the realm of public interest;

(d) That the Claimant had been the victim of sexual harassment by a prominent
Arab businessman is (if true) a matter that ought properly to be seen as private
and/or confidential and properly to be protected by injunctive relief and/or a
privacy law or (if false) defamatory;

(e) Descriptions of the Claimant’s feelings towards her ex-husband during and after
her marriage, details of her sexual relations with him and details of her divorce
and divorce settlement are (if true) matters that ought properly to be seen as
private and/or confidential and properly to be protected by injunctive relief
and/or a privacy law or (if false) defamatory;

(f) Details of the Claimant’s sexual relationships with another individual and/or one of her solicitors are (if true) matters that ought properly to be seen as private and/or confidential and properly to be protected by injunctive relief and/or a privacy law or (if false) defamatory, other than in the context of the perjury allegation outlined above which brings these matters into the realm of public interest;

(g) The Claimant’s feelings towards her ex-husband’s brother are (if true) a matter
that ought properly to be seen as private and/or confidential and properly to be
protected by injunctive relief and/or a privacy law or (if false) defamatory;

(h) That the Claimant’s ex-husband, as a Head of State, sympathised with and
supported Islamic fundamentalism is a matter of public interest (if true) or (if
false) defamatory;

(i) That the Claimant knew or suspected, from conversations with her ex-husband,
that there would be major terrorist attacks on the UK and Israel is a matter of
public interest (if true) or defamatory (if false);

(j) That the Claimant’s ex-husband, as a Head of State, flew a senior member of Al-
Qaeda to his country and gave him money for Al-Qaeda is a matter of public interest (if true) or defamatory (if false).

20. It can thus be seen that there are three classes of allegations/information:

(a) Information that is clearly private and/or confidential and properly to be
protected by injunctive relief and/or a privacy law (if true) or (if false) is
defamatory;

(b) Information that would ordinarily be seen as such but for the underlying
allegation of perjury;

(c) Information that is a matter of public interest (if true), defamatory (if false) and or is not something that should be the subject of a super-injunction.

21. The starting point must therefore surely be, in any such action brought by a claimant, for that claimant to state which of the allegations are true and which of the allegations are false. Allegations that are accepted as being true but which are averred to be private should then either be determined by a judge as being private or, if not private, be held to be in the public interest. Allegations that are false ought to be pursued by way of a claim in defamation.

22. In this instance, however, the Claimant and her solicitors have refused to state which of the allegations are true and which are false, whether in pleadings or pursuant to a formal request for further and better particulars. From the perspective of a defendant this puts that defendant at an unfair advantage.

23. Moreover the following are matters that ordinarily would be capable of being
reported by the media in the context of the proceedings brought by the Claimant but
for the fact that these proceedings are being held in secret and behind closed doors – in a manner that is wholly contrary to any notions of natural justice, fairness, equality of arms or the positive engagement of my Article 6 rights. The following are some of the points that can be taken from witness statements and evidence provided by some of the claimants staff and/or parties working within the palace residence for her:

(a) the Claimant’s solicitors manufactured evidence for a member of the Claimant’s
staff to swear in court;

(b) the Claimant and her solicitors paid large sums of cash to me to ensure that I,
among others, would give evidence to her liking in proceedings where I was a
witness;

(c) the Claimant hired an assassin to deal with her opponents;

(d) the Claimant has an obscene gambling addiction, has lied about whether or not
she gambles and pressurised Muslim staff to take part in gambling with her
despite it being against their religious beliefs;

(e) the Claimant’s solicitors gambled her money in casinos with her, contrary to
professional ethics and, if such gifts were not declared to HM Revenue &
Customs, contrary to law;

(f) the Claimant hides her excessive gambling addiction by selling personal jewellery given to her by her ex-husband – in one case she then used another UK super injunction to accuse a member of her staff of stealing the jewellery that she has laundered to hide the loss of a particular gem from her ex-husband after a family member had noticed that the item was a cheaper copy;

(g) the Claimant had an improper, possibly sexual, relationship with one of her
solicitors;

(h) the Claimant has been using her immense wealth to harass and bully people with
over powering UK legal process under the protection of a web of interlocking super injunctions (which means that the truth or otherwise of the issues behind them can never be re-examined subsequently by another court);

(i) the Claimant has been using super injunctions to block and isolate material
evidence from being heard by the court and isolated between cases;

(j) the Claimant boasted to a member of staff (who has provided a witness
statement) about the assassination of an opponent engaged in litigation against
her in another jurisdiction and saying that “Burby” was next;

(k) the Claimant’s son is homosexual – whilst his sexuality is not an issue worthy of this report and I expressly state that I feel very uncomfortable mentioning it, it is an issue that it is a criminal offence in the state of which her ex-husband (and the boy’s father) is Head of State because it means that while that Head of
State’s own son engages in homosexual activity, that Head of State incarcerates
his subjects for doing so;

(l) the Claimant and her solicitors have boasted to me and others that she “owns”
the courts in England & Wales and the government of the United Kingdom;

(m) the Claimant’s solicitors have in the past boasted to me that they can obtain
orders in the UK that others cannot;

(n) one of the Claimant’s solicitors has also divulged that the Claimant’s ex-husband has made arrangements for another litigation opponent of hers to be “dealt with” by the now former leader of Egypt;

(o) the Claimant gets her staff to cover up a wine cooler when the holy Muslim
preachers (known as Mudims) come to visit her house in London. She is in possession of the Karba (a holy artifact from the shrine of the Profit Mohammed) and keeps it within close proximity of the alcohol;

(p) the Claimants conducts disloyal collusions with her ex-husband’s official
representative in London resulting in that representative being disloyal to the
Head of State;

(q) that the Head of State’s most senior representative in London, a Muslim himself,
has been engaged in drinking alcohol and gambling with the Claimant, contrary
to Islamic law;

(r) the Head of State’s current wife has also been on a gambling trip to a London
casino with the Claimant;

(s) I hold photographic evidence showing the Claimant having sex with the man she
denies ever having had sex with – the Claimant’s solicitors also have this
photographic evidence and concealed it when applying for super injunctions so as to characterize the notion of the sexual relationship as fanciful.

Issues of general principle

24. I return to matters relevant to my circumstances that I believe ought to interest the Committee such that I should be invited to give oral evidence to the Committee on them.

25. The first concerns access to third party funding and after-the-event insurance. The wording of the super-injunction in my case allowed for me to seek legal advice alone. I wanted to explore whether third party funding and/or after-the-event insurance might be available to allow for my defence and/or a counterclaim. Given the incredible power, influence and wealth of the Claimant in my case (the ex-wife of a foreign Head of State) I was and remain anxious not to reveal the identity of any such funders/insurers. I attempted to seek the permission of the courts to contact a wide number of such funders/insurers but this was rebuffed by both the Claimant and a Judge. In due course I was permitted to contact three unders/insurers but only after identifying them and giving prior notification to the Claimant (who could thus interfere with my attempts to procure funding/insurance). If access to justice and equality of arms in the context of litigation is to mean anything then surely it must provide for the party that is the subject of an injunction to be allowed to seek funding and/or insurance from whomever he wishes while, of course, safeguarding the privacy/confidence of any claimant while an interim injunction is in force. In my case, however, the Claimant and her solicitors have continually threatened both my funders and myself with contempt proceedings for some imaginary breaches of the terms of the varied injunction even though no such breaches have ever taken place. They also lied to a high court Judge stating that an order for disclosure of my funder had already
been made thus requesting an endorsement of an order that did not exist and thus
creating a false order by default.

26. This highlights not only how it is nigh on impossible for indigent respondents to gain access to justice (or to funding/insurance) but how these injunctions are being abused by claimants and their lawyers who wield the sword of Damocles over respondents’, funders’ and insurers’ heads in an effort to become engaged in expensive satellite litigation.

27. In addition, my case has seen what I am advised by my former and current solicitors and counsel amount to a large number of breaches of professional rules on the part of the Claimant’s solicitors. These are matters that ought properly to be brought to the attention of the Solicitors Regulation Authority. They cannot be. To do so would amount to a breach of the super-injunction. This therefore means that the regulator tasked with protecting the public in the context of the provision of legal services is unable to do so in respect of the Claimant’s solicitors. This cannot be right. The SRA must surely be able to retain regulatory oversight over solicitors in all circumstances and the existence of a super-injunction, whether properly obtained or (as I allege in my case) improperly procured, should not prevent this. That lack of regulatory control is clearly creating an opportunity for abuse of the UK legal system. An abuse that the solicitors in these proceedings are systematically abusing with the protection
of the court.

28. Among the matters complained of that the Committee should realise I am unable to
report to the Claimant’s solicitors’ own regulator (that protects the public from
unscrupulous conduct by solicitors) are:

(a) Client Conflict of Interest – between 2006 and 2009, I provided a considerable
amount of acknowledged assistance to the Claimant in respect of claims she brought against other individuals in this jurisdiction and elsewhere. While I was
represented by a Jersey lawyer at the initial stage, I was not represented by an
English solicitor. The Claimant’s solicitors were fully aware of this. They took
advantage of me. I made statements in proceedings that I was told that I had to
make if the Claimant was to ensure payment of a £61m judgment of which I was the sole beneficiary. “Stay in the game” is what I was repeatedly told. I relied
throughout on the bona fides, judgment and advice of the Claimant’s solicitors. A clear fiduciary relationship arose as between myself and those in whom I reposed trust. Now that the Claimant is engaged in litigation against me, a conflict of interest arises that ought to preclude the Claimant’s solicitors from acting against me.

(b) Direct Conflict of Interest – I have alleged in these proceedings that the
Claimant’s solicitors breached duties owed to me and committed other tortious acts that mean that they ought properly to be Part 20 Defendants in Part 20 claims to be brought by me. As such, the Claimant’s solicitors ought not to be continuing to act for the Claimant in these proceedings.

(c) Breach of Confidence – throughout the time that I was providing the Claimant’s
solicitors with assistance, I communicated information of a private and confidential nature about myself and my family to them. This was done so at their request in a manner that can best be described as calculating and predatory. That information is now being used against me by the Claimant in breach of confidence.

(d) Witness Payments – throughout the time that I provided assistance to the
Claimant, I received a number of payments by her solicitors. They concocted a
disguise to make those payments and to mask that these amounted to payments to provide witness evidence, which is contrary to law in England & Wales and, I suspect, in Australia (where I likewise was paid by the Claimant to give
evidence).

(e) Cash Payments – throughout the time that I was providing assistance to the
Claimant, I received a number of payments in cash by her solicitors. It is a breach of the Solicitors’ Accounts Rules for cash payments to be made by solicitors and/or for false accounts to be prepared.

(f) Data Protection Act Breach – I made a data subject access request in February
2010 to the Claimant’s solicitors. I wanted to exercise my rights under the Data
Protection Act 1998 to obtain my personal data as held by them and arising from my dealings with that firm over the previous 4 years. The Claimant’s solicitors failed to comply with that data subject access request in any way, shape or form. This gives rise to causes of action under sections 7(9) and 13 of the Data Protection Act 1998. I am not permitted to do so under the restraint of the super-injunction.

(g) Incomplete Disclosure – the Claimant’s solicitors knowingly and deliberately
provided incomplete disclosure. I believe that they were/are attempting to hide
and evade an accusation of perjury and pervert the course of justice. In a further
attempt the Claimant’s solicitors also claimed that one of his laptops has been
stolen and critical files have been lost. However, the Claimant’s solicitors refused to specify which files have been lost and why a substantial firm like theirs
does not back up hard drive data. Also, the Claimant’s solicitors only provided any disclosure at all when threatened with a court application.

(h) Failure to Provide Inspection – the Claimant’s solicitors twice failed to provide inspection of documents, notwithstanding my entitlement to inspection of
documents mentioned in pleadings and that have subsequently been disclosed.

(i) Misleading Opponents – the Claimant’s solicitors claimed that they had only
recently begun to act for the Claimant (after its two partners suddenly left the
firm that had previously been acting for the Claimant). Unbeknown to the Claimant’s solicitors, I have evidence that they had in fact been acting for the Claimant in other proceedings for over 6 months previously. The Claimant’s solicitors lied in claiming that a fee dispute had led to their former firm taking a lien over the Claimant’s files. I am simply not able to make any complaint about their conduct because of the restraint of the super injunction.

(j) Misleading Courts – the Claimant’s solicitors misled the court when obtaining
the ex parte injunction and willfully concealed information that ought to have
been provided. Pivotal to the granting of the ex-party injunction was the alleged
sexual relationship of which the Claimant’s solicitors gave evidence to the court
as being fanciful and untrue. While giving such evidence to obtain the ex parte
injunction they willfully did not disclose that they were in possession of
photographic evidence alleging the contrary. They did not inform the court that
allegations had also been made accusing one of the Claimant’s solicitors of having
a sexual relationship with the Claimant. Throughout proceedings they have given
evidence to paint a picture of the Claimant being a devout Muslim and regal lady
of repute who falls victim to extortionists by virtue of being the wealthiest
woman in the world. However, they have failed to disclose her gambling addiction, enjoyment of alcohol as well as other behavior that would cause her to be reviled by fellow Muslims around the world and paint a picture of her character that would have an affect on the injunctive relief she obtained.

(k) Misleading Australian Courts – in a rather desperate attempt to quash the truth,
the Claimant’s solicitors lied to the Australian media by claiming that I had been
lawfully served with the ex parte injunction such as to give rise to an entire
edition of the Australian Daily Telegraph being recalled. In fact, I had not been
lawfully served at all and such proof is available from the States of Jersey
Viscount’s Department.

(l) Misleading Jersey Government – the Claimant and her solicitors lied to the
States of Jersey Government department in an attempt to obtain a license to purchase property in Jersey by a non qualified resident, namely the Claimant. This is because they wanted to be able to own my family home and thus apply pressure on me to give evidence to their liking against the man in Australia, who has now been assassinated. I was told I could not “do any thing against the claimants interests”.

(m) Failure to Provide Ex Parte Hearing Notes – on obtaining the ex parte injunction, it was incumbent upon the Claimant’s solicitors to provide a full note
of that hearing forthwith. That note was not provided for a further 7 months despite numerous requests and denying me from being aware of the allegations they made in court against me. When they did provide that note, 7 months late, it was and still is incomplete resulting in the hearing being in private to the extent that I have been precluded from defending my lawful right in these proceedings.

(n) Failure to Provide Bundles – the Claimant’s solicitors have repeatedly failed to
provide bundles to me, for example failing to do so on 24 February 2011 (and only providing those bundles on the afternoon before the hearing before Tugendhat J on 27 May 2011). As a result, I have had no idea what has been said or shown to the court.

(o) At the start of a hearing before Justice Slade, my wife received a direct threat in Jersey presumably to persuade her from giving evidence. This matter was
reported to the States of Jersey Special Branch and I provided the evidence of the threat to the Judge requesting that the hearing be adjourned for fear of my family. Not only was my request for an adjournment declined, I was told I could not provide any information to the Police unless they made a formal application to the Judge and the claimants solicitors have refused to hand over a transcript of the hearing in my absence, despite requesting to so. I therefore have had no idea what has been said or shown to the court or why the Judge placed such draconian requirements on the Police investigation into the threat on my families safety.

(p) Failure to Provide Documents – the Claimant’s solicitors refused to provide
copies of documents referred to in pleadings (whether pursuant to CPR 31.14/31.15 or pursuant to standard disclosure) and they refused to provide copies of correspondence, applications, pleadings or orders that came into existence during the lacuna between my former solicitors acting for me (namely April 2010 to March 2011). This uncooperative approach runs wholly contrary to the spirit and requirements of the Civil Procedure Rules. However, the super-injunctions prevents any such complaint of conduct being made and is enabling abuse of the UK justice process.

(q) Discourteous Correspondence – the Claimant’s principal solicitor in particular
delights in sending inappropriate, aggressive and discourteous correspondence to his opponents and their solicitors. That correspondence rarely, if ever, advances the litigation. His goal seems to be to cause costs to rise inexorably,
unsurprisingly given that the Claimant is the wealthiest woman in the world a
significant advantage over her opponents.

(r) Gambling with the Claimant – the Claimant’s solicitors regularly go gambling
with her (notwithstanding that she has presented herself in these proceedings and elsewhere as a devout Muslim). As well as being wholly inappropriate and
unprofessional, this also gives rise to a conflict of interest. This also results in
them applying improper pressure to employees of the Claimant who are forced to gamble contrary to their religious beliefs.

(s) Denial of Access to Witnesses – the Claimant’s solicitors have procured the
granting of a myriad of injunctions in the UK and elsewhere that mean that I could not speak to any witnesses about this case until 27 May 2011 and, even then, cannot speak to any other enjoined witnesses in other proceedings (such as the man with whom I have evidence she had an affair) until injunctions in those proceedings have likewise been lifted making it impossible for witness evidence to be obtained without being in contempt of court. The network of super-injunctions starts with one order and that is spring boarded to legitimize and justify the need for others thus creating precedent based on credibility that simply did not exist in the first place.

(t) Taking an Unfair Advantage – the Claimant’s solicitors sought to have a trial take place on 7 March 2011 without any notice being given to me at all. When I asked
for proof that I had been told that the trial was due to take place on that date,
the Claimant’s solicitors at first ignored correspondence and then lied that I had
received such notification when I had not (and the Claimant’s solicitors well knew that I had not). In addition the Claimant’s solicitors have lied about whether or not hearings were in private – claiming they were when even their own note of the hearing says that they were not (as was the case before Tugendhat J on 24 February 2011).

(u) Blocking Regulatory Complaints – I wished to complain about the Claimant’s
solicitors to the Solicitors Regulation Authority in respect of a variety of aspects
of their conduct (including those outlined above). Due notice of such an intended complaint was given. The Claimant’s solicitors refused to consent to the super-injunction being varied so as to allow for enjoined information to be provided to their regulator. Such a refusal is wholly unacceptable in the context of the regulation of the provision of professional services.

(v) Abuse of Process – the Claimant’s solicitors have obtained a web of injunctions
and super-injunctions in England & Wales, Singapore and Australia in an effort to
prevent the Claimant’s opponents from talking to each other. They well know that if any such conversations took place then those individuals risk being found to be in contempt of court and/or perjury.

(w) Collateral Purpose – as can be seen by these proceedings, the Claimant’s
solicitors’ primary interest seems to be to obtain injunctions and superinjunctions
with a view simply to intimidating the Claimant’s opponents (and their lawyers) and then entrapping them so that contempt proceedings can be brought. The consequences of such contempt proceedings then fall on the public purse.

(x) Conspiracy – the Claimant’s solicitors have engaged in a conspiracy of a criminal nature that has resulted in the Claimant’s former lover being jailed, the lives of others being ruined and the reputation of the Claimant to be protected when
that reputation deserves to be traduced. In particular, the Claimant’s solicitors
know as a matter of fact that the Claimant had a sexual relationship with that man and yet they have prepared documents for the court that they know are untrue (including documents signed by the Claimant’s staff). Similarly tape recordings prove that other allegations denied are, in fact, true. As a result, the Claimant should stand accused of perjury and her solicitors for perverting the course of justice should stand in contempt of court. However, they will not because of the protection they receive from the super-injunction.

29. I repeat that I am mentioning these matters to highlight the serious matters that I am prevented from reporting to the Claimant’s solicitors’ regulator (and that cannot be reported in the print and broadcast media) by virtue of a super-injunction granted nearly 2½ years ago where not a single judgment in respect of any of the interim hearings has ever been published.

30. A further problem revolves around my inability likewise to report certain matters to the police. Not only was it the Claimant’s and the court’s view that I was unable to report matters of national security and/or impending or past criminal acts to the police in England & Wales but supposedly I am unable to do so in the Bailiwick of Jersey (which, given that the injunction does not bite, other than in England & Wales, is nonsense). Again, a form of protected privilege ought to apply in this regard too. It cannot be right that someone who is the subject of an injunction cannot bring matters of such a nature to the attention of the police. The police are there to protect us all. They must be able to know matters that ought to be made known to them without barriers of hurdles being deployed by the very people, the claimant and her lawyers, who are the subject of the complaint.

Conclusion

31. I have, as the Committee will observe, been very careful indeed in the way that I have described the super-injunction that relates to me. I have been careful not to reveal the identity of the Claimant, nor to go into any undue detail that breaches the spirit of the injunction. In any event, of course, this written submission is protected by parliamentary privilege and I am not bound by the terms of the injunction in Jersey (where I am resident and from where I have prepared and sent this supplementary submission).

32. I am aware that the Lord High Chancellor, Kenneth Clarke, gave evidence to the
Committee last week. When the thrust of my situation was put to him, he responded
by saying that super-injunctions "are now being granted only for very short periods
where secrecy is necessary to enable service of the order". He went on to say that
"you cannot have just long-running secret litigation". That, of course, is incorrect as the super-injunction against me has been in place since 9 September 2009 and it remains in place to this day. The litigation brought against me is indeed secret litigation and has been secret litigation for well over 2 years. None of the interim rulings made by the judges in these proceedings have been published, even in an anonymised or redacted form. The litigation has been going on wholly in secret and with my Article 6 rights being infringed and ignored. But of course, without my ability to give evidence to this enquiry under Parliamentary Privilege, the Select Committee would be none the wiser and indeed the Lord Chancellor could say what ever he liked.

33. In the event that the Committee would welcome any clarification of points raised in this submission, or would welcome oral evidence from me, I remain ready, able and willing to provide such assistance to the Committee on short notice.

23 January 2012

Comment: What has the Sultan of Brunei got to do with all of this? So much for the injunction of anonimity.

Leaked proposals set out Britain's tough line towards Strasbourg

Leaked proposals set out Britain's tough line towards Strasbourg

UK wants to stop cases reaching European court if question is "substantially identical" to one that a national court has already considered

Joshua Rozenberg
guardian.co.uk, Tuesday 28 February 2012 15.49 GMT

Cooling off at Brighton beach. The town will host the Council of Europe's summit in April 2012. Photograph: Chris Ison/PA

The UK's plans to water down the human rights convention have emerged as a key element of the Council of Europe summit that Britain is hosting at Brighton in April.

Although the government has refused to publish the draft declaration it circulated last Thursday to the other 46 states that are signed up to the European court of human rights, a leaked French text makes it clear that the UK wants more cases decided at national level and fewer embarrassing rulings from Strasbourg.

The UK is seeking an amendment to the human rights convention to enshrine what the Strasbourg court refers to as the margin of appreciation - which allows states a level of discretion in applying the convention.

If Britain gets its way, the principle of subsidiarity would also be written into the convention. Explaining this, the draft Brighton declaration says that national authorities are normally best placed to enforce convention rights. The UK argues that national parliaments and courts should decide how to implement convention rights, limiting the Strasbourg court's role to reviewing decisions taken at national level and ensuring that those decisions were within the state's discretion.

A series of options designed to reduce the court's workload are on the table for the Brighton summit. The simplest of these would reduce the six-month time limit within which an application must be brought.

More dramatically, the draft declaration proposes amending the human rights convention to make a case inadmissible if the claim was substantially identical to a question that had already been considered by a national court. There would be exceptions for cases where the national court had "clearly erred" or where the case raised a serious question of interpretation.

Reducing the number of cases declared admissible would be balanced by a new procedure under which the court could deliver advisory opinions. The UK supreme court and its equivalent in other states would be able to put questions to the Strasbourg court, in much the same way as courts in the EU can seek advice from the court of justice in Luxembourg.

Crucially, it would be for the national court to apply the Strasbourg judges' opinion to the facts of the case.

The broad outlines of these proposals have been debated for some time but, almost inevitably, the devil is in the detail. What's proposed is that officials at the Council of Europe should draft amendments to the human rights convention within the next year.

The Strasbourg judges have no problem with the principle of subsidiary or the margin of appreciation. But as Sir Nicolas Bratza, the court's president, told me in January, the judges are not prepared to relinquish their ultimate authority. In the judges' view, they and not the member states should decide whether a case should be decided in Strasbourg or resolved at local level.

Ministers are confident that a text will be hammered out in negotiations over the next six weeks and agreed at the English seaside on April 20. How far that text will go remains to be seen. And it will be some months more before Britain learns how effective the reforms will be at reducing the defeats that governments regularly suffer at the European court.

However much the government insists that it is trying to make the court operate more efficiently, it is hard to escape the conclusion that its main objective is avoiding any more rulings such as the decision that the UK's blanket ban on prisoners voting was a breach of their human rights, and the recent decision that Abu Qatada cannot be tried in Jordan on evidence tainted by torture.

MONITORING THE IMPLEMENTATION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS - A Handbook for Non-Governmental Organisations

MONITORING THE IMPLEMENTATION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS - A Handbook for Non-Governmental Organisations

MONITORING THE IMPLEMENTATION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS - A Handbook for Non-Gover...

Warm Home Discount Scheme

Warm Home Discount Scheme

Today I received £120.00. Not in cash but as a top-up on my NPower prepayment key for the electric meter.

My electric halogen fire packed up just after Christmas...

I have had a look at the prices of electric fires on the internet. They are not cheap. My old one only cost £10. A neighbour told me that she has seen a smaller version of my old one for sale for £12.95 in a shop in the city centre.

Now Spring is just around the corner the bonus has come a bit late, but better late than never.

Prisons under pressure, chief inspector warns

Prisons under pressure, chief inspector warns

The rising prison population after last summer's riots combined with budget cuts are putting jails under serious pressure which "cannot go on idefinitely", the chief inspector of prisons has warned.

Nick Hardwick, the independent arbiter on jail conditions in England and Wales, said governors were being put in a very hard position.

“We are asking prisons to do a very difficult thing,” he said in an interview with the Financial Times.

“On the one hand numbers are going up and money is going down. And we’re saying, on top of that, we want you to do more [to prevent reoffending]. I think actually that’s not an unreasonable ask for a period of time . . . but I don’t think that can go on indefinitely.”

Prisons are operating at 98 per cent capacity after the jail population hit a high of 88,179 in December.

Nearly 1,000 rioters have been given custodial sentences, lasting on average four times longer than those awarded for similar crimes in 2010.

MoJ officials insist the crush will ease when two new prisons open next month, however the chief inspector said there was a “critical issue” about how fast the population rose in the interim.

“Can the rise be slow enough so that it doesn’t reach 100 per cent before the new [prisons] come on?” he said. “What we don’t know is whether the rise. . . is a hump that arises from the riots that will work its way through the system . . . or whether that’s a long-term trend.”

Mr Hardwick said his key concern was that in crowded prisons, the programmes intended to reduce reoffending as part of the government’s vaunted “rehabilitation revolution” come under strain.

“The question is, what do you do with people once they’re there?” he said. “Do you have enough space to keep people occupied, and are you making best use of it? The programmes you’re doing to address people’s behaviour – have you enough of those?”

At the centre of the drive to break the offending cycle – and in doing so, to reduce prison demand by more than 2,500 places in three years – is the idea that prisoners should be working a 40-hour week. Ken Clarke, justice secretary, has said he wants to see a profitmaking company in every prison, staffed by inmates who earn a wage and contribute to the economy.

However, the chief inspector said that for many prisons, this ambition is far from the reality. When he inspected Wandsworth prison last year, he was impressed to see that it had a workshop run by Timpson, the shoe repair business, but that it was half empty because the prison could not organise people to get from the cells to the workshop.

“In a sense, the work was an afterthought,” Mr Hardwick said. “You got the impression it was the least important thing the prison was doing. So people had to go to the gym, they had to do other things, unlike in normal life where you fit those things around work. . . you have to make work a more central objective of what the prisoner is there for.”

He said companies found the bureaucracy of running a business in prison “very frustrating” – which jails needed to address. “Businesses that provide work in prisons need to be treated as customers, and we need to make it as easy as possible for them to do their work,” Mr Hardwick said.

The Sun is out...

The Sun is out...

In pictures: The waterfall that glows like fire

In pictures: The waterfall that glows like fire

Horsetail Fall in Yosemite National Park in California is pictured from a position along the Merced River off Southside Drive in Yosemite Valley just before sunset as it glows. The phenomenon of this vista only occurs for only few days in February each year when several weather and climatic conditions are just right.
Reuters

Comment: Brilliant. I attempted to post this yesterday but each time I clicked on the link it took me to an advert.