Saturday 31 May 2014

European Court of Human Rights - two decisions of interest

                               : Whole Lifers :

A recent decision of the Second section of the European Court of Human Rights has re-iterated the court's jurisprudence with regard to "whole life" tariffs - Mr László Magyar v Hungary .  The relevant principles to be applied were set out by the Grand Chamber in Vinter and others v United Kingdom 2013 - discussed on this blog 9th July 2013.

To date, the British government does not appear to have taken any action as a result of the Vinter case.  The most logical and, I submit proper, response would been to have put in place an independent mechanism for review of the need for on-going detention on penological grounds of those prisoners ordered to serve 'whole life' terms.  The matter has been
"fudged" by the decision of the Court of Appeal (Criminal Division) in R v McLoughlin [2014] EWCA Crim 188 where it was held that the possibility of release under the Crime (Sentences) Act 1997 section 30 (exceptional circumstances which justify release on compassionate grounds) provided an appropriate mechanism - (further discussion).

Mr Magyar's case is effectively the court applying its established jurisprudence to the particular situation regarding whole lifers in Hungary.  The court found a breach of Article 3 because the possibility of presidential clemency was insufficient.

However, the decision perhaps shows that the present situation in England and Wales will prove to be inadequate should the matter again come before the E Ct HR.  Despite the Court of Appeal's decision in McLoughlin, the 1997 Act possibility of "compassionate" release seems unlikely to meet the need, as stated by the Grand Chamber in Vinter, for a full review of the need for continuing detention of a whole lifer.  Whether the British government cares about this is a moot point.  It may be that they actually prefer, for political reasons, to have the present "stand off" with the E Ct HR.  Certain senior members of the government have even talked about the possibility of withdrawal from the European Convention and the Secretary of State for Justice has said that he will present plans later this year - BBC 13th January 2014.

An excellent discussion of Mr Magyar's case and its implications is at UK Criminal Law Blog

: Hillsborough and the Article 2 (Right to Life) obligation for effective investigation:

An admissibility decision of the 4th Section of the E Ct HR is Karen Harrison v United Kingdom. The applicants complained under Article 2 of the Convention that the respondent State has failed to conduct a prompt, effective and independent investigation into the deaths of their family members arising from the Hillsborough Stadium disaster, with sufficient levels of public scrutiny and family participation. The E Ct HR ruled that the application was inadmissible.  The Hillsborough Independent Panel Report (here and here) had created a further Article 2 obligation on the UK but this was being discharged by, inter alia, the new inquests ordered by the High Court.  Those inquests are now underway - Lord Justice Goldring and a jury.

At paras. 53 and 54 of the admissibility decision, the E Ct Hr said:

53.  The flawed character of the original inquests has now been recognised, two decades on, by the  Hillsborough Independent Panel, the Government and the High Court in the light of newly disclosed information (see paragraphs 32-38 above). The question for this Court is whether any procedural obligation incumbent on the respondent State to investigate the deaths of the  Hillsborough victims has been revived and, if so, what is the content of that obligation. The Court is prepared to accept that the nature of the deaths in the present case engages the procedural aspect of Article 2. It is persuaded that the findings of the Hillsborough Independent Panel constitute new evidence and information which cast doubt on the effectiveness of the original inquest and criminal investigations. In these circumstances, the authorities are under an obligation, pursuant to Article 2 of the Convention, to take further investigative measures.
54.  It is clear that extensive investigative measures are underway. Less than three months after the Panel published its report, the Attorney General applied to the High Court to have new inquests ordered and the application was granted a week later (see paragraphs 36-38 above). A senior judge was swiftly appointed as coroner and a number of preliminary hearings have taken place, the first only four months after the original inquest verdicts were quashed. The full inquests are scheduled to begin on 31 March 2014 (see paragraph 39 above). Simultaneously, a new criminal inquiry has begun and the IPCC is investigating allegations of police misconduct in the aftermath of the disaster (see paragraphs 40-41 above). The steps taken by the authorities of the respondent State are notable for both their haste and their comprehensive nature. There is nothing to indicate that the respondent State has failed to satisfy the investigative obligations which have arisen as a consequence of the Panel report. There is also no reason currently to doubt that the inquests and other investigations will be able to establish the facts and determine the lawfulness or otherwise of the deaths in question (see, e.g. McCaughey and Others v. the United Kingdom, no. 43098/09, § 127, 16 July 2013). It is noteworthy that the applicants have neither criticised the steps taken since the publication of the Panel report in September 2012, nor suggested that the new inquests will not afford them the opportunity to have their relatives’ cases re-examined in light of all relevant information.

and at para 59 ...

The procedural obligation under Article 2 that is before this Court to consider in the present applications came into existence with the findings of the Panel. This being so, and having regard both to the understandable absence of criticism by the applicants of the prompt and effective measures taken so far by various authorities of the respondent State to further investigate the deaths of the  Hillsborough victims following the setting up of the Panel and to the pending inquests and investigations, the applications must be regarded as premature and inadmissible pursuant to Article 35 §§ 1 and 4. If the applicants become dissatisfied with the progress being made or, upon the conclusion of the investigations and inquests, are not content with the outcome, it remains open to them to lodge further applications with the Court.

The Hillsborough Inquests website

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