The Abu Qatada Saga: Have Human Rights Gone Wrong?

Last week saw the end of the Abu Qatada saga, with him being deported back to his native Jordan.

The tabloid press were overjoyed that this individual had finally been removed from the country. And, they said, he would have gone a lot sooner had it not been for human rights. Some of the Conservative members of the Coalition Government agreed with this. They are determined to change the influence of human rights law so we can deport people as and when we like.

So what really was the issue and do human rights deserve to be criticised?

The Relevant Facts

The Abu Qatada saga is a long and complex one. For these purposes the following facts are sufficient. Abu Qatada is a dangerous terrorist. He has been convicted twice in his native Jordan for serious terrorist offences, both times in his absence. He was sentenced to life imprisonment with 15 years hard labour.

The UK Government wanted to deport Qatada back to Jordan because he is dangerous. It started the process of trying to deport him in 2002. He has spent most of the intervening time in prison awaiting deportation.

So what prevented the Government from deporting Qatada?

Human Rights Law: Torture and Fair Trials

Article 3 of the European Convention on Human Rights (ECHR) provides that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’.

This means that in any country which has signed the Convention an individual cannot be tortured. In a number of cases the question arose of whether an individual could be sent to a country where they would likely be tortured. After all, if it is unacceptable to torture an individual why should it be acceptable to send an individual to a country where we know they are going to be tortured?

In the case of Chahal v United Kingdom (1996) the European Court of Human Rights held that, even in the case of a suspected terrorist, an individual cannot be deported from a country if there are substantial grounds for believing there is a real risk of them being subjected to torture. So, when an individual is likely to be tortured when they are returned home, we cannot remove them.

The Government knew that this case would be problematic in its attempt to remove Qatada, because it was widely accepted that torture was used in Jordan. If there was a real risk Qatada would be tortured then he could not be removed on human rights grounds. To avoid this, the Government signed a ‘Memorandum of Understanding’ (MOU) with the Jordanian government, an agreement that Qatada would not be tortured if he was deported.

Armed with this MOU the Government sought to deport Qatada. However, he appealed arguing that he would be tortured. He also argued that to deport him would breach his right to a fair trial under Article 6 of the ECHR. He said that this right would be breached because any trial he would face in Jordan would allow evidence to be used against him that was obtained by torturing others. The argument was similar to the argument under Article 3. If we would not allow evidence obtained by torture to be used in a country that has signed the Convention then why should we allow an individual to be sent to a country where exactly this might happen?

The House of Lords (the highest court in the UK at the time) agreed that deporting someone in these circumstances could potentially breach Article 6. It held, in RB (Algeria) v Secretary of State for the Home Department (2009), that to deport someone where there are substantial grounds for believing that the individual would be exposed to a real risk of being subjected to ‘a flagrant denial of justice’ would violate Article 6. While it accepted that being subject to a trial which admitted evidence obtained by torture could satisfy this test, it found there was no risk of this happening on the facts. It therefore said Qatada’s deportation would be lawful.

Qatada appealed to the European Court of Human Rights (Othman v United Kingdom (2012)), making the same arguments about Articles 3 and 6. The Court dismissed the appeal on Article 3; it held that the MOU was a sufficient assurance that Qatada would not be tortured if deported. Therefore there was no breach of Article 3 by deporting him.

However, for the first time in the Court’s history, it held that deporting Qatada would breach his right to a fair trial under Article 6 because there were substantial grounds for believing that evidence obtained by torture would be used in the trial against him and this would be a flagrant denial of justice. Qatada’s deportation was therefore blocked.

Following this the Government sought further assurances from Jordan that it would not use evidence obtained by torture. Once it had done this it tried again to deport Qatada again. This time the Special Immigration Appeals Commission (a UK court) ruled that there was still a real risk of evidence obtained by torture being used, so deportation was blocked on Article 6 grounds. The Government appealed to the Court of Appeal and lost. It then looked to appeal to the Supreme Court (the House of Lords’ replacement).

However, in May, Qatada surprised everyone and announced that he would leave the UK voluntarily if a treaty was signed by the UK and Jordan guaranteeing him a fair trial that would not use torture evidence. Unsurprisingly, the treaty was enacted rapidly, and, on 7 July, Qatada left the UK for Jordan, where he is to now face terror charges.

Human Rights Gone Wrong?

Having examined the decisions then, the question is have human rights gone wrong? Did they wrongly protect Qatada? The answer must surely be no. Few are likely to argue that we should subject people to torture, or the product of it. Aside from striking at the core of a democratic society, it often produces evidence of negligible value; who would not say what they thought their torturer would want them to say to stop the torture?

Human rights often protect disliked minorities in society. But that is the whole point of them. They protect anyone who is in danger of being subject to inhuman treatment. The UK is rightly regarded as the pinnacle of justice, fairness and democracy. We set the highest standards in the world that other countries are judged by.  We should be proud of that. I accept that over a million pounds of public money in legal fees to remove an individual is a huge sum, but it is a small price to pay for justice. If you disagree, I trust you would be prepared to face a Jordanian trial?

European Court of Human Rights Rules Whole Life Sentences Breach Human Rights

The European Court of Human Rights (ECtHR) has ruled that ordering prisoners to serve the rest of their lives in prison without the prospect of release breaches their human rights.

Three murderers, Douglas Vinter, Jeremy Bamber and Peter Moore, all had a whole life sentence imposed on them for their crimes. They could never expect to be released, apart from in exceptional circumstances, such as on compassionate grounds.

They argued that never having the option to be released back into the community breached their right under Article 3 of the European Convention on Human Rights not to be subject to ‘inhuman and degrading treatment’.

The Court agreed, although it noted that the prisoners did not have the prospect of imminent release.

Before commenting on the decision I shall explain the Court’s reasons (available here).

The Judgment

Firstly, the Court was keen to stress there is nothing in principle wrong with a prisoner serving a whole life sentence, so long as there is the prospect of it being reviewed and potentially reduced. It said, for example, there was nothing wrong with detaining a prisoner for life if they posed a danger to society, so long as the sentence could be reviewed.

However, the Court held that a whole life sentence must be capable of being reduced (and therefore reviewed) for four reasons.

1) the reasons for detention are not static and can change over time. For example, if a whole life sentence is imposed to punish a prisoner and because they are a danger to society this may change if the prisoner alters their life and can show they are no longer a danger to the public;

2) a prisoner can never ‘make up’ for their offence if they have no prospect of ever being released. Instead the punishment becomes worse over time the longer the prisoner lives;

3) it is against human dignity for the State to deprive a person of their freedom indefinitely without at least providing some chance of freedom in the future; and

4) the emphasis in European penal policy is now on rehabilitation, returning people to useful life.

Therefore any sentencing regime that does not allow for the review of a life sentence will breach an individual’s right not to be subject to inhuman and degrading treatment. Reviews are necessary; it was suggested after 25 years might be appropriate. Essentially then, whole life sentences are unlawful.

English law does not allow a review of a whole life sentence. It only provides that the power to release a prisoner can be used in exceptional circumstances, such as on compassionate grounds. It therefore breaches the Article 3 right of whole life prisoners not to be subject to inhuman and degrading treatment.

From this it becomes clear why the applicants in this case cannot expect imminent release. Life sentences are not wrong in principle, but refusing to review, and potentially reduce, them is.

Comment

I personally find this decision a difficult one to agree with. I do not disagree agree at all with the notion of a review. After all granting a review merely demonstrates our compassion, compassion which an offender will have denied their victim. It differentiates society from the offender.

However, I am not sure the decision makes logical sense. Under current law (found in Schedule 21 of the Criminal Justice Act 2003) a whole life sentence can be imposed when the court considers the seriousness of the offence is ‘exceptionally high’. The order is imposed because the offence is so serious that our law judges it to be deserving of a whole life sentence. This assessment of seriousness, assuming it is correct, is unchanging: something that is exceptionally serious will remain exceptionally serious 25 years from now (presuming that murders do not become so much worse in the future that past murders appear less serious). So while a review may be necessary, what exactly will it achieve? If the assessment of the gravity of the offence remains the same then there will be no cause to reduce the sentence ever. It seems that any review will only be a formal process to satisfy the requirements of Article 3.

Our law on whole life sentences does not directly focus on the dangerousness of the offender or other related factors. It focuses only on the gravity of the offence. It makes the policy decision that those murders which are of exceptional gravity should be punished without the prospect of release. The real question therefore is not about the necessity to review any sentence. Instead, it is whether pure punishment alone can justify a whole life order? The UK Government would doubtlessly argue that it is our sovereign right to decide on which basis to sentence convicted individuals. Are we obliged to consider other factors, such as the rehabilitation of offenders?  I am not sure that a court is best placed to decide these inherently philosophical questions. Nevertheless, I believe that the European Court missed that this was the real point in this case.

It will be interesting to see how the Government decides to react to this judgment. It certainly is not pleased with it.

For more information generally on the European Convention on Human Rights, see this article.

What are your thoughts? Should we have whole life sentences? And should they be capable of review?

Cameras in Courts: to be Welcomed?

Today, the Government has confirmed that it will allow filming in the courts from October.

Initially, filming will be allowed in the Court of Appeal and broadcasters will be permitted to show pictures of the lawyers involved and the judges. The Government hopes to then extend filming to the Crown Court, where images of judges passing sentence would be allowed to be broadcast. The Government says broadcasting court proceedings will make the justice system more transparent and will build trust in the justice system.

So is broadcasting court proceedings a good idea? I shall now summarise some of the main arguments for and against filming in the courts.

Arguments in favour of filming in court 

1) Filming court proceedings would make the justice system more transparent and build trust in the justice system because the public could see justice in action.

2) Filming court proceedings would improve understanding of the justice system.

3) It would allow the public to see the very important work of legal professionals and the court system, and encourage appreciation of them.

4) Finally, and related to the third point, the public would support a fully funded court and legal aid system because it would see the value of them.

Arguments against filming in court

1) Filming in the courts would not necessarily build trust in the justice system. For example, televising MPs in Parliament has not made the public trust politicians any more.

2) Televising the courts would not necessarily improve public understanding. The public sees Parliament on television but does not seem to understand it much better. Moreover, it could positively cause misunderstanding. If only part of the proceedings are televised it might mislead the public as to the true nature of a case.

3) Seeing the work of the courts would not inevitably mean that the public appreciates it any more. The public sees Parliament in action but does not appreciate it any more.

4) The public would not support more funding for the courts and legal aid simply because proceedings are televised. Once again, Parliament is televised but the public certainly does not support a salary increase for politicians.

5) Filming court proceedings could affect the behaviour of those involved. Witnesses and, to a lesser extent, lawyers may ‘act up’ for the cameras.

All of these arguments do not deal with the issue of whether the public would even find televised court proceedings interesting. For example, the appeal courts almost exclusively deal with questions of law, they do not deal with the facts of a crime. Would the public be that interested in listening to, often complex, legal arguments? That said, proceedings in the Supreme Court (the highest court in the land), which also deal with complex legal arguments, are televised already (see here) and apparently have 90,000 daily viewers.

What are your thoughts? Do you think televising court is a good idea? Would you find it interesting?

Save Legal Aid, Save Justice, Save Yourselves

Ordinarily, when writing for LawScape, I seek to present a recent legal development and then breakdown the facts and law. This week, however, I will deal with a hugely important issue, one which will potentially destroy the justice of our society. I do not exaggerate when I say destroy the justice of our society. Unfortunately, this is a real and pressing threat to us.

The Government is planning to make enormous changes to criminal legal aid. Broadly speaking, legal aid funds legal representation for you if you are ever unfortunate enough to face criminal charges. These changes, if they become reality, will destroy our country’s reputation as a beacon of justice.

‘Why should I care?’ you make ask. ‘I have no intention of ever facing criminal charges’. You quite rightly intend this. But consider the following scenarios:

(a)       you are driving along a dark road one night and all of a sudden hit a person you did not see. They die. You now potentially face a charge of death by dangerous driving and 14 years in prison;

(b)       you are out one night with a friend. They are then attacked by a drunken individual. You instinctively react and punch the attacker as hard as you can before they strike your friend again. You blind them in one eye. You now potentially face a charge of grievous bodily harm (GBH) and either up to five years in prison or up to life in prison (depending on the type of GBH); and

(c)       you are home alone one night. You hear an intruder in your property and you go downstairs. They see you and begin to approach you. You instinctively grab the knife on the side and in fear stab the intruder. They die. You now potentially face a murder charge. If you are convicted you will receive a life sentence.

I hope these scenarios demonstrate just how easy it is to be on the receiving end of serious criminal charges. With the best will in the world you can easily be in need of criminal defence. You quite justifiably, in a democratic society, expect to have a competent individual of your choice to defend you. However, if the Government’s plans become reality then you will find yourself in the following position:

(a)      you will not be able to choose your own solicitor. You would be prevented from choosing your own family solicitor (unless you can afford to pay privately) and could not opt for a specialist solicitor;

(b)      you may not even get a solicitor at all (unless you pay privately). If you have a joint disposable income of over £37,500 you will have to fund your own legal representation. By the way, an average three day trial costs in the region of £10,000;

(c)        if you do get a solicitor they are likely to be employed by the likes of Stobart’s (the trucking group ) or G4S (the goons who fouled up the Olympics security);

(d)     those solicitors will receive a fixed fee for every piece of work they do, regardless of how time consuming it is. So your case will have to be dealt with as quickly as possible so the solicitor makes enough money to live. It will not necessarily get the attention or expertise it deserves. It might not even get the attention of a solicitor. Instead, the solicitor will have to employ under qualified case workers to deal with your case because they are cheaper to employ and will help keep the solicitor in business; and

(e)        if you need a specialist barrister - someone to persuade the court you are not guilty - they might be paid only £14 a day. Yes, you read it correctly, £14 a day to keep you out of prison. That’s if you even get a barrister.

Welcome to the new world of British justice. You have turned up at court to potentially be found guilty of a serious offence and imprisoned. Your barrister has arrived too, although their train ticket cost more than their daily fee. I wager your're feeling really confident right about now that you will be protected by British justice?

I hope I have made it clear just how desperate the situation is. The UK is rightly regarded as a beacon of justice. That beacon is about to be extinguished unless we collectively will it not to happen. Sign this Government petition and the issues might be debated properly and stopped.

Save legal aid, save justice, save yourselves.

Thank you.

Ian Brady: How do prisoners get to and leave high security psychiatric hospitals?

This week Moors murderer Ian Brady is appearing at a Mental Health Tribunal arguing for his transfer back to prison.

The 75 year old and his partner, Myra Hindley, tortured and murdered five children, aged 10 to 17, between July 1963 and October 1965, burying some of their victims’ bodies on Saddleworth Moor, near Manchester. They were both sentenced to life in prison.

In November 1985 Brady was transferred from prison to Ashworth maximum-security hospital after being diagnosed a psychopath.

He has been on hunger strike since 1999 and is force fed through a tube. As he is detained under the Mental Health Act 1983 he can fed against his wishes. He wants to be returned to prison where he can then refuse food and die.

To be transferred he will have to convince the Tribunal that he no longer has a mental disorder.

So how exactly do prisoners get to and leave high security psychiatric hospitals?

Transferring Prisoners to Psychiatric Hospitals

Where an individual is serving a sentence of imprisonment and the Secretary of State for Justice is satisfied, by reports from at least two registered medical practitioners, that the prisoner is suffering from a mental disorder to an extent that make its appropriate for them to receive treatment in hospital and that appropriate treatment is available for them, then the Secretary of State can direct that the prisoner is transferred to hospital from prison. This is called a ‘transfer direction’ and is made under section 47 of the Mental Health Act 1983.

The Secretary of State can also add a ‘restriction direction’ to the transfer direction if they think it is suitable (under section 49 of the 1983 Act). This basically means that only the Secretary of State can approve the release of the prisoner. A restriction direction was made in the case of Brady.

Applications by prisoners

So how can a prisoner apply to be returned to prison? Under section 70 of the Act, a prisoner can apply to the Mental Health Tribunal after six months of being in hospital and may then apply once a year thereafter.

Return to Prison

Under section 50 of the Act, if the Mental Health Tribunal (or another authorised person) notifies the Secretary of State that the prisoner no longer requires treatment or there is no effective treatment, the Secretary of State may order the transfer of the prisoner back to prison. However, the decision remains with the Secretary of State.

Application to Brady

Brady is arguing that he no longer requires treatment; indeed he is arguing that he faked psychotic episodes. If he succeeds the Mental Health Tribunal will notify the Justice Secretary, who will then decide whether to return Brady to prison. However, the Justice Secretary could decide not to transfer Brady.

If Brady is transferred he can then, theoretically, refuse food and die. English law provides that a capable adult can refuse medical treatment (which includes force feeding) even if it leads to their death. This principle is set out in the case of Re C (Adult)(Refusal of Treatment) [1994] 1 WLR 290.

Conclusion

It is vital to remember that the Mental Health Tribunal will not consider Brady’s crimes. It will not examine whether it is right to allow a convicted murderer to refuse food and die. It is simply considering whether Brady still requires treatment in hospital. The Justice Secretary, however, might well be considering this issue. After all, it remains his decision to return Brady to prison, even if the Mental Health Tribunal agrees Brady no longer needs to be in hospital.

It will be interesting to see what the outcome is.

Twitter Users Beware

This week has seen the conviction of two individuals over comments made on Twitter. It also saw another individual narrowly escape prosecution for Twitter comments.

Each of the comments was made in relation to the murder of soldier Lee Rigby in Woolwich, on 22 May.

Deyka Ayan Hassan, a 21 year old student, suggested on Twitter that those who wear Help for Heroes T-shirts ‘deserve to be beheaded’. She was subsequently threatened by a large number of people and when she reported this to the police was herself arrested. She pleaded guilty to sending a malicious message and was sentenced to complete 250 hours of unpaid work by Hendon Magistrates’ Court.

Benjamin Flatters, 22, from Lincoln, also made offensive comments  on Twitter following the brutal murder. He too pleaded guilty to sending malicious communications. However, unlike Ms Hassan, Skegness Magistrates’ Court sentenced him to 14 days imprisonment.

Mohammed Mazar, 19, of Woking, Surrey, was charged with improper use of a public electronic communication network following offensive comments made on Twitter related to the killing. He was due to appear at Guildford Magistrates’ Court on 11 June; however, the case against him was discontinued.

So what, exactly, were these individuals charged with?

Communications Offences

Ms Hassan and Mr Flatters were convicted of sending an article with intent to cause distress or anxiety, under section 1 of the Malicious Communications Act 1988.

Under that section, a person is guilty of an offence when they send to another a message which is ‘indecently or grossly offensive’, a threat, or information which is false (or believed to be false by the sender). The message can be sent by electronic communication (such as Twitter), a letter or by any other article. To be guilty of the offence the person must intend to cause distress or anxiety to the recipient or any other person to whom the message is intended to be sent to.

For this offence it does matter if the message ever actually reaches anybody. The offence is simply to send the message.

The maximum penalty for this offence is 6 months imprisonment and a £5,000 fine.

Mr Mazar was charged with improper use of a public communications network, under section 127 of the Communications Act 2003. Under that section, a person is guilty of an offence if they send a grossly offensive, indecent, obscene or menacing message by means of a public communications network (such as by Twitter). Again, it does not matter if the message actually reaches anybody. The maximum penalty is the same: 6 months imprisonment and a £5,000 fine.

Social Networking and the Law

It is very easy to say things on social networks, such as Twitter and Facebook, which would not ordinarily be said in person. It is also very easy to forget the very public nature of what is said. Comments made on social networking websites are capable of worldwide exposure in a few mere hours. However, we are just as responsible for what we say online as what we say in reality. Social networkers should beware of the potential consequences.

Understanding Murder Sentences: When Does ‘Life’ Mean Life?

Last week Mark Bridger was jailed for life for the murder of five year old April Jones. The attack was sexually motivated.

Bridger had said that he accidently ran April over and that he could not remember where he had put her body. He was convicted unanimously by the jury. He was sentenced to life in prison and will remain in prison for the rest of his life.

A number of people I spoke to afterwards expressed confusion about life sentences, saying that others who receive a life sentence are told they may be released in future, even though they were sentenced to life imprisonment. So how does sentencing for murder work?

The Sentence for Murder

Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 abolished the death penalty for murder. It provides that convicted murderers will instead be sentenced to life imprisonment. There is no other sentence: all murderers receive a life sentence.

Setting the ‘Tariff’

The Criminal Justice Act 2003 (section 269) provides that when a court is sentencing an individual to life imprisonment for murder it must set a ‘tariff’. This is a fixed minimum period that the offender will serve in prison.

The court must fix the tariff by reference to the seriousness of the murder. The more serious the murder is the higher the tariff will be. Schedule 21 of the 2003 Act provides guidelines for what the tariff will be in certain cases. For example, the murder of a police officer ordinarily attracts a tariff of 30 years. A murder with no especially bad features will ordinarily attract a tariff of 15 years.

However, in certain cases, if the court decides the seriousness of the murder is exceptionally high then it can make a ‘whole life order’. A whole life order is where an offender is sentenced to imprisonment for the rest of their life and will never be released. Schedule 21 suggests that whole life orders are appropriate in cases such as the murder of a child which involves sexual motivation and murder for the purpose of advancing a political, religious, racial or ideological cause (terrorism).This is the order that was made in the case of Mark Bridger. He murdered a child with a sexual motivation. In these circumstances ‘life’ means life.

The Early Release Provisions

In all cases where a whole life order is not imposed the court must order that the ‘early release provisions’ apply as soon as the offender has served the period of their tariff. The early release provisions are found in Chapter 2 of the Crime (Sentences) Act 1997. They provide that once an offender has served their tariff they must be released once the Parole Board recommends their release. The Parole Board will recommend the offender’s release if it is satisfied it is no longer necessary for the protection of the public to continue to detain the offender.

Therefore once a life prisoner has served their tariff they may be released if they are no longer a danger to the public.

After Release

When a life prisoner is released they are released on licence. They must comply with any conditions set out in the licence. The life sentence still hangs over the offender for the rest of their life. If they commit a further offence, breach their licence conditions, or otherwise become a danger to the public, they can be returned to prison under their life sentence. They will only be released again when the Parole Board recommends it.

Conclusion

A sentence of life imprisonment only means life in prison when the offender receives a whole life order. All other life prisoners have a chance to be released at some point in the future. However, the life sentence will remain with them for the rest of their life. It can be reactivated in certain circumstances and they can be returned to prison.