Thursday 20 October 2011

News: Undercover officers alleged to have lied: Human Rights - have top judges disagreed: The march toward secret hearings in British courts

Have "undercover" Police Officers lied to courts?

It is alleged that an undercover Police Officer who was prosecuted for his "role" in a protest movement lied to the court by giving a false name and occupation - see The Guardian 19th October "Police Undercover Officer - Court perjury claim" ; The Independent 20th October "Undercover Officer may have put trial at risk" and "The Telegraph" 20th October - "Police Chiefs authorised undercover officers to give false evidence in court."  This has led to the publication of a report from H.M. Inspectorate of Constabulary being delayed - see HMIC News.  The Report - entitled "Undercover Tactics in Public Order and Extremism" - arose from revelations of the involvement of PC Mark Kennedy in an environmental protest - see Law and Lawyers 10th January 2011 and 21st July 2011.

For the view of former Director of Public Prosecutions Lord Macdonald QC see The Guardian 20th October - "Police spies crossed the line."

Have two senior Judges disagreed about Strasbourg's influence in the UK?

The Lords Constitution Committee has continued looking at Judicial Appointments.  On Wednesday 19th October, the President of the Supreme Court (Lord Phillips) and the Lord Chief Justice (Lord Judge) gave evidence which can be seen on Parliament TV.  It is worth watching.  Subsequently, it has been reported that the two disagreed about the influence which the European Court of Human Rights should have in relation to proceedings in UK courts - see The Independent 20th October.    In this context it is worth
noting what the Human Rights Act 1998 actually states - section 2:

Interpretation of Convention rights.

(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any -

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention,

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 

The key words there are "take into account."  Having said this, it is obvious that UK courts will normally seek to actually apply clear Strasbourg decisions and, in particular, those of the Grand Chamber.   It may be that the two judges are not really as far apart as some in the media are seeking to make out.  You can decide by viewing the link to the committee hearing.

Addendum 23rd October:  The UK Human Rights blog takes an interesting look at what the Lord Chief Justice actually said.  Their post is based on a headline which appeared in The Times - "Britain can ignore Europe on Human Rights".  As Adam Wagner points out, the headline is incorrect.

The march toward more secret hearings:

Earlier this year, the Supreme Court ruled that the common law did not permit the use of closed hearings and special advocates in civil proceedings: Al Rawi v Security Services [2011] UKSC 34 - please see Law and Lawyers post of 13th July.    The Supreme Court indicated that legislation would be required to introduce such procedures and, in fact, special procedures have already been enacted in some situations - e.g. at the Special Immigration Appeals Commission.

The British government acting, so it appears, under pressure from the USA, felt it necessary to settle a number of civil actions brought by individuals who alleged British complicity in torture committed abroad - The Independent 20th October - "Centuries of open justice threatened by secret courts."  Settlement of these claims was in an undisclosed amount though a figure in the region of £20m has been indicated.  Kenneth Clarke MP (Secretary of State for Justice) announced that a Green Paper would be issued to consider changing the law in relation to how security information is handled across the whole range of legal proceedings.    The Green Paper has now been issued and is open for consultation - Cabinet Office 19th October.    A website - Justice and Security - has been opened and responses to the consultation can be entered.

These proposals are exceptionally controversial  - see the reaction of Liberty ; Reprieve and Amnesty

The UK Human Rights Blog has a good article about the Green Paper- "More Secret justice on the horizon" - Adam Wagner 19th October.


  1. The press, particularly the Times, has gone overboard with the "Britain can defy Europe on human rights" line. Lord Judge was distinguishing between EU law, which is supreme over Parliament, from ECHR law, which is not. Judges have a large measure of discretion in the latter but cannot "ignore" it - and Judge did not say that. The Judge and Phillips quotes in the papers are corrected, put into proper context and explained here:

  2. Here is the link provided by alrich at the end of his comment:

    Alrich Weblog