Thursday 11 July 2013

Meddlesome European Judges ~ the E Ct HR ~ Mubenga Inquest ~ Female Offenders

' .... meddling European judges rule even Britain's most evil killers have human right to seek freedom' - was how the Daily Mail 10th July greeted the European Court of Human Rights (E Ct HR) decision in Vinter and others v UK. The howls from British Ministers were all too predictable - (The Guardian 9th July) - and the decision seems to have reinforced desire within at least the Conservative Party to take the UK out of the European Convention on Human Rights (E Conv HR).  Article 58 of the Convention permits a State to 'denounce' the convention on giving 6 months notice to the Council of Europe.

Upon a calmer analysis, the Vinter case does NOT tell the UK that it cannot apply whole life orders to the worst murderers.  The judgment requires a review of the need for continued detention after a period of perhaps 25 years with periodic reviews thereafter.  There has to be a penological reason for continuing detention such as
the risk of danger to the public if the individual were to be released.  Ministers should also consider that the UK argued before the E Ct HR that our law already allowed for the possibility of release if it could be shown that there were no penologoical grounds for continuing detention of a particular prisoner.  Any changes to the law or the Prison Order as a result of Vinter should not therefore present the sort of fundamental change in penal policy which Ministerial rhetoric suggests.

For a critical look at the Vinter case see Carl Gardner's Head of Legal blog.   Gardner concludes that the judgment is open to criticism and thinks that 'it goes too far by effectively ruling out prospective whole life orders in all cases, even though none of the applicants showed any unfairness in his own specific case. But it’s not as obviously bad or overreaching as Hirst or S and Marper, it does not have any serious or immediate effect on our legislation and it does not make any actual prisoner more likely, in the real world, to be released. It ought not to be that big a political deal. But I’m not surprised that it is.'

Oxford Human Rights Hub - Why the majority was right to find that whole life orders violate Art 3

National Profiles on the E Ct HR website:

The E Ct HR wesbite has a profile for each State.  The UK's profile is interesting.   There were 2082 applications from the UK in 2012.   2047 of those were inadmissible or struck out.  24 judgments were handed down with 10 violations found.  The 13 page profile contains short notes about cases which have involved the UK and also refers to a number of pending cases.  The Convention has touched our domestic law in a considerable number of areas such as freedom of religion; asylum and immigration; terrorism and national security; police powers; surveillance; LGBT rights; Trade Unions etc.

Risky Changes afoot at E Ct HR:

Remember the Brighton Declaration and concern over the backlog of cases at Strasbourg?  Some important changes are afoot and these are covered in an excellent post by Andrew Tickell on the UK Human Rights blog - Radical but risky changes afoot at the European Court of Human Rights.  As Tickell argues:

' ... these changes are unlikely to trouble the small number of wealthy litigants whose cases have already been aired in the highest domestic courts before finding their way onto the European Court’s docket. By contrast, the changes to time-limits, compounded by the Court’s new Rules, risk having a disproportionate effect on the poorest and most vulnerable applicants, with the least access to legal advice, subject to the worst outrages at the hands of their states.'

UK and the European Union (EU):

According to The Guardian 9th July   the Home Secretary, Theresa May, has announced that the UK will opt out of 133 EU criminal justice measures, using a "block opt-out" negotiated by a previous Labour government. It will then seek to sign up again to some 35 of them, including a "reformed" European arrest warrant (EAW).  The EU opt-out is also about the role of the Court of Justice of the EU.  Once the UK opts back in to these 35 measures, EU judges rather than UK judges will have the last word on how they are interpreted.

Jimmy Mubenga Inquest:

An inquest has ruled that, in 2010, Jimmy Mubenga was unlawfully killed during his deportation from the UK: The Independent 9th July.  In 2011, the Crown Prosecution Service decided not to prefer any charges but it is now reported that this decision is being reconsidered.

Amnesty has commented about the inquest and is calling for 'a root-and-branch overhaul of the entire immigration removal system.'  In 2011, Amnesty published a report Out of Control: The case for a complete overhaul of enforced removals by private security companies (PDF).

INQUEST has produced a 'Briefing' on the case (HERE) and calls for a parliamentary committee inquiry into the use of restraint and force in deportation cases and the use of private companies in the removal process.

Magistrates and the Treatment of female offenders:

The Howard League for Penal Reform has expressed concern that some Magistrates' Courts are four times as likely to send a woman to prison than others Magistrates' Courts.   Frances Crook, chief executive of the Howard League for Penal Reform, said:

"We welcome the drop in the use of short prison sentences for women in recent years, but it remains the case that a woman convicted of a non-violent offence is more likely to go to prison than a man.

Women who find themselves in court often need a lot of support. They are often victims of crimes themselves such as domestic abuse or pimping. Sending these women to prison for a few weeks is not the answer to the complex issues in their lives.

"We are concerned that legislation currently going through parliament may make the situation for women worse. The offender rehabilitation bill extends short prison sentences with a year of supervision in the community but it is unclear how specialist services for women will survive as the government seeks to privatise probation using large regional contracts that will squeeze out small local providers."

A final thought:

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