Thursday, 3 February 2011

Forensic science ... Breaking the Cycle ... Prisoner voting ... Some important decided cases

On 27th January 2011 the government announced in Parliament that there is to be a review of Forensic Science Research and Development - see Home Office   The review is to consider the current and likely future status of research and development relevant to forensic services for the Criminal Justice System within England and Wales.  Could it just be the case that it has now dawned on Ministers that their decision to axe the Forensic Science Service - (see Law and Lawyers 28th December 2010) - might adversely affect future development in this field?

Mr Crispin Blunt MP (Parliamentary Under Secretary of State at the Ministry of Justice) has made a speech to the Social Market Foundation in which he extols the virtues of "payment by results" and "outcome based commissioning" in relation to dealing with offenders.  See Ministry of Justice 25th January 2011.   This speech has to be seen in the context of the government's green paper "Breaking the cycle ...." - see Law and Lawyers 7th December 2010.   The Green Paper is something of a curate's egg: good in parts.  There are certainly proposals to be commended but there is also quite a bit which is controversial.   For example, few would disagree with the notion that prisons should be places of hard work with an emphasis on reform.  Similarly, most agree that community sentences have to be delivered very soon after the offender is sentenced and that they must also be effective with breaches dealt with robustly.

In his speech, Mr Blunt commented that punishment alone is not enough.  "We also need to make sure that we rehabilitate offenders. For the truth is, under almost any system, most offenders will eventually return to the community. If we haven’t addressed their propensity to commit crime, we are not keeping the public safe. It is only through cutting reoffending that we can reduce crime over the long-term."

It is therefore interesting that the government seems to be squaring up
for a scrap with the Council of Europe over Prisoner Voting rights - see Politicshome.  Is it not the case that a strong argument for giving prisoners voting rights is that it could have a rehabilitative possibility?  The "Straw-Davis" motion to be debated in Parliament reads - "That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand."   It would have been more accurate for the motion to have said that the European Court noted the absence of debate in the U.K. Parliament on the matter since it is not for the Court to dictate what must be debated and the court did not attempt to do so.  Given the trend which is evident in the European Court's decisions on voting it is likely that continued denial of the vote to prisoners will result in successful human rights claims against the United Kingdom and also result in the U.K. being declared in breach of its human rights obligations under the Convention.  The possible consequences of the latter are not clear at the moment.  Please see also the earlier post on Law and Lawyers 20th January

A very interesting post appears on the UK Human Rights blog - "Should people with low IQ be banned from sex?"   The post looks at a difficult case decided recently in the Court of Protection - D Borough Council v AB [2011- EWHC 101 (COP) - note the judgment is anonymised.  The local authority sought a declaration that a man - (referred to as Alan) - could not consent to having sexual relations.  Thr trigger for the council's application was that Alan had made lewd gestures at children.  Alan lacked understanding of the consequences of sexual activity.  The judge (Mostyn J) granted the declaration.  A further question was whether that declaration should be final or, as argued for by the Official Solicitor, an interim declaration coupled with an order to require the local authority to provide Alan with sex education.  The judge ordered adopted the latter course and ordered that Alan receive sex education and the case will be reviewed in 9 months time.  Leave was granted to the local authority to appeal.

Other important recent cases have been the Supreme Court decisions in Yemshaw v London Borough of Hounslow 2011 where domestic violence was considered in the context of housing law - see Law and Lawyers 31st January. and ZH (Tanzania) v Home Secretary - judgment and press release.

A mother appealed to the Supreme Court against her deportation arguing that it would disproportionately interfere with her private and family life as guaranteed by Article 8 of the European Convention on Human Rights.  ZH came to the U.K. in 1995.  ZH had an "appalling immigration history" (per Lady Hale).  She made asylum claims using false names but these were rejected.  She formed a relationship with a British citizen and had two children who are now aged 12 and 9.  The children are British and have lived here all their lives.  Their parents separated in 2005 but the father continues to have contact with them.  Was it reasonable to expect the children to leave the U.K. with their mother?    The Court of Appeal thought so.  When the case was appealed to the Supreme Court, the Home Secretary had accepted that deportation of the mother would be disproportionate but was concerned about the general principles to be applied in these cases by the authorities (e.g. the U.K. Border Agency etc).  The Supreme Court stated that the "best interests" of the children included deciding whether it was reasonable to expect them to live elsewhere.  Their nationality - (and, presumably, life history) - was of importance in assessing their best interests and those best interests were a primary consideration in making the proportionality assessment required by Article 8.  The judgment of Lady Hale contains observations about how the views of the children should be ascertained - para. 34 onwards.

An interesting view about this case is expressed by Rosalind English on the U.K. Human Rights blog - "Analysis: Children's "best interests" and the problem of balance."    Although the Supreme Court stated that the child's "best interests" might be outweighed by the cumulative effect of other considerations it is practically speaking very difficult to think of a set of circumstances where a deportation might now be possible where there are dependent children who hold British citizenship.

Addendum 4th February 2011:   See the Jailhouselawyers blog for considerable discussion on the Prisoner Voting issue.  See also "Prisoner voting: Convicts are human beings with human rights" - Thomas Hammarberg in The Guardian 4th February 2011.  Hammarberg is the Council of Europe's Human Rights Commissioner.  The UK Human Rights blog has previously posted on this subject - "Council of Europe warns UK again over prisoner voting rights" - UK HR blog 19th November 2010 and "European Court of Human Rights sharpens its teeth" - UKHR blog 2nd June 2010.  Please also see the comments to this post.


  1. As you say, "seems to be". It's an illusion. Smoke and mirrors. Might I remind you that the scrap was between yours truly and the UK in 2004 and the UK lost. The loser appealed to the Grand Chamber and in 2005 lost again. Forward planning dictates a plan B, in case it all goes wrong, like the highest Court in Europe rejecting plan A. "We didn't expect to lose" whined the UK's legal team on the plane coming back from Strasbourg. LOL!

    "Is it not the case that a strong argument for giving prisoners voting rights is that it could have a rehabilitative possibility?". Whatever, I stick with the Court proclaiming that voting is a human right and because prisoners are human beings too they are also entitled to this human right.

    "The possible consequences of the latter are not clear at the moment". They are to me. Given that the Parliamentary Assembly of the Council of Europe has just debated and voted that the UK must fully comply with Hirst No2 decision or else. PACE will not tolerate any attempt at minimum compliance. PACE has also said it is prepared to suspend the vote of the UK in the Council of Europe. The EU will follow suit, since the EU acceded to the Convention in February 2010. Penultimately, the UK will be suspended and untimately expelled from both institutions. No trade allowed with other Member States, and sanctions upon any which breach the embargo. In November, the UN also joined the Council of Europe to end the human rights abuse in Europe.

    Abuse of Human Rights, Democracy and Rule of Law are very serious violations individually and all together will not be tolerated by other Member States. 46 Member States of the CofE, and 26 of the EU, and 800m citizens are ready to penalise the UK. So too is the UN.

    The Tory whole in foreign policy before the election was remiss. The gap in knowledge of the shift in the political balance since the Lisbon Treaty harms the Tory thinking that it can bully Europe into letting the UK abuse human rights. It's the United States of Europe or European Empire and not the British Empire which is top-dog now.

    Vaseline for David Cameron? I have a feeling he is going to be phyisically ill, when he wakes up from the knock out punch...

  2. Head of Legal Blog - Strasbourg cases discussed

    The question of what sanctions can be applied to a Council of Europe Member State which does not abide by a ruling of the European Court of Human Rights is governed by Article 46 of the European Convention on Human Rights. In 2010, when Protocol 14 came into force, a revised Art 46 also came into effect. It reads:

    “Article 46 – Binding force and execution of judgments
    1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
    2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
    3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee.
    4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.
    5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”

    Thus, it is for the Committee of Ministers to refer the non-compliance to the court and a two-thirds majority is needed to make a reference. If the court agrees that the State is no complying then the matter returns to the Committee of Ministers to decide what to do about it. Clearly, such a process is not going to be gone through quickly and the actual sanctions are not really all that clear though they do no doubt include the possibilities of suspension or expulsion from the Council of Europe.

  3. Obiter J: Many thanks for the opportunity for rational debate on a subject close to my heart. The honour is mine also because I don't suffer fools gladly, and I have seen, heard and read lots in relation to my case and very little sensible comment which is disheartening. I will reciprocate with a link back to your blog.

    It is my case not just because it bears my name, but also because I asked the Council of Europe who owned the case bearing my name and they responded that I do under intellectual property right law. I beleive this to be a first. I was concerned about the Prison Reform Trust jumping on the bandwagon and trying to hijack the steering wheel. Also, the media misrepresenting the case. Now I discover that some MPs who have spoken outside of Parliamentary privilege will make nice juicy targets.

    Like you, I could not see any rational reason for the disenfranchisement which led me to research the subject in great detail trying to find the answer. When I couldn't, then I knew that the ban was vulnerable to a legal challenge. As I expected, the courts in the UK were very unsympathetic and from the outset I thought I would be 'Going to Europe'. The ECtHR said that the ban was ahistorical.

    I think that Scoppola v Italy may well have far wider implications, for example, the life sentence being a breach of human rights, if so, then natural life must fall and also the life licence scheme.

    The Coalition proposals of a 4 year or less cut off point, and giving judges discretion to remove the franchise on a whim, I knew was a non-starter because it falls foul of my case. I was glad when Frodl v Austria was decided because the Court referred to the principles established in the Hirst test. I was chuffed when the interviewer said I was now famous as the Grand Chamber decision was published. Then it dawned on me that I had made history. So, to have a test named after me as well was like the cherry on top of the iced cake.

    The thing about Frodl is that it was decided on 8 April before the last general election in May. There was time for the UK to have given prisoners the vote in time for the election. A problem is the 3 months between a decision and it becoming final, to allow both parties the opportunity to appeal to the Grand Chamber.

    Greens and MT v UK, being a Chamber judgment, cannot be seen as some commentators have suggested a step back from Frodl because in Frodl the Chamber relied upon Hirst No2 a Grand Chamber judgment. Mine remains the leading authority on the subject of prisoners votes. I have been informed that Greens and MT have applied to the Grand Chamber to appeal on the issue of damages and issue of judicial review being an ineffective remedy. What is interesting from the judgment is the 6 months time limit given to the UK to fully comply with my case. Still, in my view, if convicted prisoners do not get the vote in time for May elections and AV I think there will be damages payable.


  4. My case certainly torpedoed the UK beneath the waterline, the Underbelly laid open wide. I don't think people appreciate yet the amount of damage it has actually caused.

    For example, there is a common misconception that my case was just against the government. But, it actually is against the State which includes the Executive, Parliament and Judiciary but not the public.

    It also attacks the doctrines of Separation of Powers and Sovereignty of Parliament.

    It is also an attack upon the HRA 1998, not like the Tories but that it is toothless and does not go far enough.

    When Tony Blair introduced Rights Brought Home: The Human Rights Bill, he observed that the Committee of Ministers, was, in effect, a toothless watchdog. He stated that the UK would not take advantage of this situation. He lied. Labour took delaying full compliance to the 5 year limit. The CoM ups the pressure once the 5 year stage has been reached. But, the Lisbon Treaty came as a blessing because ratification of Protocol 14 gave the Court, Council of Europe and CoM new powers. It allows for Rule 11 'infringement proceedings' to be invoked against the UK. This would be a first in the Convention history.

    What tends to be forgotten in all of this is the Treaty of London 1949 (The Statute of the Council of Europe). The UK was one of the 10 original signatory States. It is worth reading the preamble and the Articles, in particular the 3 objectives of Human Rights, Democracy and Rule of Law. Articles 7 & 8 are particulary relevant for the Eurosceptics and those seeking to apply sanctions against the UK.

    February 2010 saw the Interlaken Conference taking place and adoption of the Interlaken Declaration, which, in my view, is binding upon the UK. The Interlaken process was adopted by the CofE from the UN model for applying sanctions to rogue or pariah States to get them to toe the line.

    My case should not be seen in isolation but should be read in conjunction with the changes which have happened and are happening in Europe. Only then can it be appreciated what deep water the UK is in.

    Nobody is linking the constitutional reforms announced by Labour and the Coalition to my case. I would claim I have succeeded where Guy Fawkes failed

  5. Yes, the Convention is binding on Member States of the COE. Of course, at COE meetings the States are represented by members of the State governments currently in power.

    Protocol 14 to the Convention came into force on 1st June 2010 with the final ratification by the Russian Federation. Prior to that, whilst Russia was considering the matter, there was Protocol 14 bis which bound the UK.

    Protocol 14 ECHR blog and factsheet

    Generally speaking I try not to mix the COE and the EU since they are distinct bodies - COE being older. However, the European Convention on HR is relevant to both bodies.

    Even the initiation of infringement proceedings would, I suspect, be highly embarrassing for the UK.

    Your are right re the Treaty of London - now the Statute of the COE.

    Article 3
    Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.

    Article 8
    Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

  6. John - many thanks for commenting on this. Your comment has also led me to your very interesting blog which, for some reason, had not come up on my various searches. I have added a link to it.

    For my part, I agree that prisoners should be granted the right to vote in accordance with the decision in your very own case - Hirst v United Kingdom which, as you rightly say, the UK lost. I do not see any rational case to deny them a vote. The existing rules are based on outdated (almost prehistoric) thinking in which prisoners lost civil rights.

    The most recent E Ct HR case of Scoppola v Italy also points against some kind of "bright-line" cut off such as 4 years as proposed by the UK coalition government. [In Italy the cut off was 3 years]. The Frodl v Austria case also supports prisoners having the vote in all but very limited situations and then only subject to judicial decision and not some black and white rule.

    There is a problem lurking however in the E Ct HR decisions. It is the pilot jdugment in Greens and MT v UK which indicates that the decisions national policy-makers should be given special weight. I suppose - (don't actually know)- that the U.K. will be trying to stand on this decision.

    The Head of Legal blog has discussed these case well.

    Whatever view is taken of Greens and MT, I am of the view that the whole trend of the Grand Chamber decisions is against the U.K. on this issue and we should comply.

    Thank you for expressing views about the possible consequences of not complying. When I wrote this post I had not looked into what might happen and I am still not entirely sure. I suppose that the Council of Europe will have to find some way of upping the pressure! As far as I aware, I don't think the Council of Europe has actually had a showdown situation yet. IF one comes, I suspect that the UK will be made to look exceptionally bad in terms of its human rights record and it may not (will not?) be possible for the UK to keep the fall out limited to just the prisoner voting issue. All sorts of other issues will be raised such as the UK and Extraordinary Rendition etc.

    When I wrote this post, what really struck me was the contrast between Crispin Blunt arguing for rehabilitation of jailed prisoners and yet denying the vote. Many see denial of civil rights such as voting as working against the whole idea of rehabilitation. I agree with that.

    Many thanks again for your valuable comments.