JUSTICE STUDENT HUMAN RIGHTS NETWORK
CONTENTS
WELCOME
Welcome to the 9th edition of the JUSTICE Student Human Rights Network e-bulletin.
Thank you to all those who attended our second annual student human rights conference for the network in March. It was a great success; the conference had a brilliant atmosphere and we had very positive feedback from the event.
This edition of the bulletin provides the next instalment of our series of Questions and Answers on each of the key articles of the European Convention on Human Rights. We continue with Article 3: the freedom from torture, inhuman or degrading treatment. We hope that this continues to form a useful guide that will point you both to the key European Court of Human Rights decisions and also to relevant British developments in terms of law and policy. In time, we should have a comprehensive guide to the Convention which should provide a unique perspective on its operation in the UK. We also include a briefing on procedural safeguards in the EU.
We continue our guide to relevant human rights websites that we hope you will find useful in the concluding section of the bulletin which also suggests ways you can get involved in human rights, with JUSTICE and with the network.
As ever we
welcome your feedback on the JUSTICE Student Human Rights Network - please
email jshrn@justice.org.uk with
any comments or questions or if you would like to be added to our mailing
list to automatically receive this newsletter.
INTRODUCTION
We hope that this spring edition of the JUSTICE Student Human Rights Network e-bulletin is enjoyable reading and light relief particularly to the many of you currently immersed in revision and exams.
In recognition of the busy summer terms you are having, the events calendar for the JUSTICE Student Human Rights Network will be quieter now until the autumn term and we would like to take this opportunity to reflect on the achievements of the last few months as well as to set the stage for the forthcoming academic year.
Last year kicked off with 'Human Rights in Practice' - a free morning event held at BPP Law School, Holborn on a Saturday in November 2008 that was particularly aimed at those who were new to human rights. Later on in December we had a unique opportunity to hold an event that involved our student members of the network. For the first time we sought volunteers to help JUSTICE present a session on the arguments for and against a British bill of rights at an event held at the British Library by the Equality and Human Rights Commission. Five students gave invaluable assistance and more recently brought the debate over to the student conference.
'Human Rights, Civil Liberties and Demoracy'
A
stand out event this year was the second annual human rights conference
held in March that was kindly hosted by Freshfields Bruckhaus Deringer
with the generous support of the College of Law. We had high hopes after
last year and so were delighted when a grand total of 222 students turned
up early on a Saturday morning. Following an inspiring keynote address
by Baroness Helena Kennedy QC, delegates participated in break-out sessions
on anonymous witnesses, secret evidence and the European Arrest Warrant
led by Sally Ireland, Dr Eric Metcalfe, and Jodie Blackstock respectively.
The day continued with a panel presentation on a British bill of rights
by the above mentioned students that opened up to a lively and thought-provoking
audience discussion and concluded with a panel focused on human rights
careers. We would like to take this opportunity to express our gratitude
to all of the sponsors and supporters of the event as well as the many
speakers and of course the students who attended and made the event such
a success.
And so to next year...
Spurred on by the growing interest in the conference, we hope to repeat the formula next March to culminate the academic year's activities in a similar manner. We were greatly encouraged by the enthusiasm of all who attended and of course by the many of you who have chosen to become full student, pupil and trainee members of JUSTICE as a result. Apart from the major conference, we are also aiming to organise at least one additional special event for the autumn or spring term.
We remain committed to expanding the network and to providing a number of events and opportunities for the 1500+ students we now have on the network mailing list. If you have any ideas for specific topics for future events, as always we encourage you to get in touch. You can email us at jshrn@justice.org.uk or telephone 020 7762 6422. We cannot stress enough how much this network is meant to reflect your interests and cater to your needs.
Do
make sure you are kept up to date by emailing jshrn@justice.org.uk
to be added to the mailing list if you do not already directly receive
notice of our events or links to these bulletins! You can also read past
editions of the JUSTICE Student Human Rights Network electronic bulletin
on our website,
as well as see details about past events and read network members' contributions
on a variety of human rights issues.
We look forward to seeing you again next term and to welcoming any new members to the network. In the meantime, good luck with exams etc and have a good summer!
Best wishes,
Hayley Smith
JUSTICE
Briefing: European Convention on Human Rights Q & A
Article 3: Freedom from torture or inhuman or degrading treatment or punishment
What
does Article 3 say?
No one shall be subject to torture or inhuman or degrading treatment or
punishment.
Does
this create an absolute right which cannot be qualified in any way or
derogated from in any circumstances?
Yes.
What
are the definitions of 'torture', 'inhuman' and 'degrading' for the purposes
of the ECHR?
The ECHR itself gives no definitions: any difference, which lies in the
severity of the treatment or punishment, does not matter very much as
all three are banned. However:
- Torture is deliberate inhuman treatment causing very serious and cruel suffering.
- Inhuman treatment or punishment causes intense physical and mental suffering.
- Degrading treatment/punishment, arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance.[1]
Threats which are 'sufficiently real and immediate' to cause mental anguish can come within the definitions even in the absence of physical harm.[2] Torture requires deliberation but inhuman or degrading treatment or punishment does not: the state's deprivation of any lawful source of sustenance can amount to inhuman or degrading treatment, as when failed asylum-seekers are deprived of any income or benefit and not allowed to work [3]
In the early 1990s, Ireland successfully brought a case against the UK in relation to five techniques regularly used in Northern Ireland against detainees; 'wallstanding', 'hooding', continuous loud noise, sleep deprivation and deprivation of food and drink. The European Court of Human Rights held these were caught by Article 3, although short of torture, within inhuman or degrading treatment. The British Army then banned them. Notwithstanding this, the same techniques were deployed in Iraq by the British army. A courageous army lawyer, Lieutenant-Colonel Nicholas Mercer, objected and was eventually backed by a subsequent army inquiry that blamed lack of training on the re-emergence of such techniques.[4]
The Bush Administration in the United States, however, developed a programme of 'enhanced interrogation techniques' that may yet lead to prosecutions of the senior officials involved (see below).[5] There are allegations in the case of Binyam Mohammed that UK officials were complicit in his torture.[6]
Has the UK signed any other international conventions on torture?
Yes: the UN International Commission on Civil and Political Rights. After a similar general prohibition to Article 3 of the ECHR, there is an additional commitment:
In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
More specifically, the UK has also signed and ratified the UN Convention against Torture and other Cruel of Inhuman, Degrading Treatment or Punishment. This entered into force on 26th June 1987. A Committee against Torture is established under the Convention and can investigate allegations by individuals and other states against those countries that have agreed to be so bound. The definition of torture under this Convention is slightly different from that in the ECHR:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Does the prohibition on torture have a long history in the UK?
It certainly does. A number of the judges in the key case of A and others v Secretary of State for the Home Department[7] give learned and interesting explanations of the development of a ban on torture in common law. There has been no lawfully sanctioned torture in England and Wales since 1640 and in Scotland since 1708. The Bill of Rights 1689 banned the infliction of 'cruel and unusual punishment'.
Is torture an offence in the UK?
Yes, if undertaken by a public official, whether or not a UK citizen or whether or not the torture was carried out in the UK. Section 134 of the Criminal Justice Act 1988 provides:[8]
(1) A
public official or person acting in an official capacity, whatever his
nationality, commits the offence of torture if in the United Kingdom or
elsewhere he intentionally inflicts severe pain or suffering on another
in the performance or purported performance of his official duties.
(2) A person not falling within subsection (1) above commits the offence
of torture, whatever his nationality, if-
(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence-
(i) of a public official; or
(ii) of a person acting in an official capacity; and(b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.
Faryadi Zardad, an extremely unpleasant Afghan warlord, became the first person to be convicted on the basis of the universal jurisdiction introduced by these provisions in 2005. The High Court accepted that he was de facto a public official. Zardad had been found living in Streatham, having entered the UK under a false passport.[9]
Is evidence that has been obtained by torture or ill-treatment excluded in criminal trials?
Yes. Section
76 (2) of the Police and Criminal Evidence Act 1984 repeats the common
law rule and excludes any confession obtained 'by oppression ... or in
consequence of anything said or done which was likely .. to render [it]
unreliable'. To prevent such abuse, a duty solicitor scheme provides assistance
for police interviews and these are now invariably taped by the police.
Nevertheless, abuse can still occur. On hearing the tape of an interview
at which a solicitor had been present, the then Lord Chief Justice commented:
'Short of physical violence, it is hard to conceive of a more hostile
or intimidating approach'. The defendant (one of the 'Cardiff Three')
had denied a charge of murder 300 times before eventually confessing;
forensic evidence subsequently proved that another person had committed
the murder.[10]
Is evidence obtained by torture or ill-treatment excluded in civil cases?
Yes, as a
result of A and others v Secretary of State for the Home Department,
mentioned above. However, the court held that 'the Secretary of State
does not act unlawfully if he certifies, arrests, searches and detains
on the strength of evidence which I shall for convenience call torture
evidence'.[11] In addition,
a majority of the House of Lords held that a court or tribunal should
assume that evidence has not been obtained by torture unless convinced,
on the balance of probabilities, to the contrary.
Can a person, even someone who is a foreign national and considered a risk to national security, be deported, extradited or otherwise sent to a country where there is a reasonable risk that they will be tortured?
No.[12]
Is the UK government happy with that?
No. It intervened
in a recent case at the European Court of Human Rights in order to argue
that national security was a relevant consideration and lost. The court
also made it clear that no government could simply rely on assurances
that someone would not be tortured or ill-treated: that was a judgement
to be made on the facts of every individual case.[13]
The House of Lords has recently accepted rulings by the Special Immigration
Appeals Commission that the UK government could rely on diplomatic assurances
that two men - suspected of terrorism - would not be ill-treated upon
return and thus held lawful the deportation of those men to Algeria and
Jordan.[14] By contrast,
the Court of Appeal has held that diplomatice assurances were not enough
in relation to Libya.[15]
What about the US?
The US is not, of course, a party to the ECHR. It entered a specific reservation to the UN Convention against Torture that limited effect of the Convention to the provisions in the US Constitution:
The United States considers itself bound by the obligation … to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.[16]
The effect of the constitutional requirements became a contested issue in which the administration of George W Bush took a very narrow view. Most controversially, the process of simulated drowning was authorised at the highest points of the administration and apparently practised widely by US officials. The US also developed a programme of 'extraordinary rendition' in which it arrested - or caused the arrest - of people in one country and sent them to another for interrogation. Sweden was criticised by the Committee against Torture for allowing the US to move a terror suspect from Sweden to Egypt where he alleged he was tortured.[17] President Obama has accepted that 'waterboarding' is torture: his administration is still considering its policy towards those who authorised it. President Obama has said that he will not prosecute agents who operated in good faith on the basis of advice from above.
Footnotes
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Briefing: Procedural Safeguards in the European Union
What are procedural safeguards?
The term 'procedural safeguards' refers to the protections afforded to a defendant in the course of criminal proceedings. The European Commission Green Paper and Proposal for a Council Framework Decision on procedural safeguards adopted the phrase to refer to this aspect of criminal procedure in the area of police and judicial co-operation in criminal matters, for which legislative activity is enacted pursuant to the Third Pillar of EU Treaty Law.[1] The 5 key protections identified in the Proposal were the right to legal representation and legal aid, the right to interpretation and translation, notification of rights, assistance for vulnerable defendants, and consular assistance.[2]
Why is action necessary?
As set out in the Green Paper and Proposal, protections for defendants during the course of criminal proceedings are required to ensure that a fair trial takes place. The Council of the European Union (Consisting of the Heads of State of each Member State) agreed at Tampere in 1999 in the Presidency Conclusions that action was necessary in this area.[3] In 2004, the Hague Programme confirmed that defence rights must be protected when enacting legislation on criminal matters.[4] There are now multiple legal instruments either in force in the Member States or being adopted at EU level which aim to allow mutual cooperation between prosecuting and judicial agencies in the detection and prosecution of crime. These instruments focus on how the cross border criminal process can be made more efficient without considering the interests of the defendant. Whilst all Member States are signatories to the European Convention on Human Rights and Fundamental Freedoms, all Member States continue to infringe Convention Rights. Numerous recent studies have shown that there are wide ranging differences in protection of defendants during the criminal process as between the Member States.[5] The Strasbourg Court can only consider a case post infringement and has a 100,000 caseload backlog. Nor are its decisions effectively enforceable to ensure a regime change in the Member States. The benefit of a Council framework decision in this area is that it is binding upon the Member States and must be implemented by way of national legislation.
Why are there no procedural safeguards already?
The Justice and Home Affairs (JHA) Council, which consists of the Ministers of Justice and their equivalents from the 27 Member States, debated the practicalities of adopting the Proposed Framework Decision, reducing it in its scope substantially over a three year period. Eventually in the summer of 2007 the Proposal was shelved. Six member States refused to accept the Proposal: the UK, Ireland, Czech Republic, Slovakia, Malta and Cyprus. The justification given was predominantly related to whether there was competence to act in this area, either at all or limiting effect to cross border cases. The UK also commented that the proposal was so limited that it would simply reflect Convention rights and there was therefore no point in enacting the legislation in that form.
So how are these safeguards to be protected?
Sweden will hold the next EU Presidency from July to December. They have announced an intention to revive the efforts in the area of procedural safeguards by way of a road map which will set out the rights to be considered. This will be followed up by proposals for Council framework decisions from the Commission on each right separately rather than collectively. What is not yet clear is which rights will be included, over what period of time, and how this road map will bind future EU Presidencies to continue to act in this area. The Commission is expected to communicate a Proposal for a Council Framework Decision in the area of interpretation and translation on the 1st July.
What is JUSTICE's view?
JUSTICE has a supported action on procedural safeguards since the outset of the debate. Indeed, we proposed action in this area prior to the Commission Green paper in 2003.[6] We continue to be involved along with a number of other NGOs. Whilst our original stance is maintained, in that if any action in the area of judicial and police cooperation in criminal matters is to be successful, in terms of mutual trust and recognition, the prosecution measures must be balanced with defence protections, we accept that the previous attempt failed to be adopted by the JHA Council and a new approach may be required. We will, however, strongly advocate to the Swedish Presidency and other Member States, the need for the proposed road map to clearly spell out the rights it aims to protect and how this will be achieved and that the instrument must be such as to bind future JHA Councils. We will be active over the next few months in raising awareness of the importance of these rights to all EU Member States. Whilst the UK has a strong system of defence protection through the Police and Criminal Evidence Act 1984, the same is not true of other Member States. The British public must be aware that should they travel abroad on holiday or make use of their freedom of movement within the EU, the guarantees available to them at home (the right to a phone call, to have a lawyer present prior to and in interview, to have an interpreter, and to be given disclosure of the case against you amongst others) may not exist in the country they travel to. In the era of the European Arrest Warrant, a simple speeding ticket, mistaken identity in a mobile phone theft or pub brawl could lead to individuals being surrendered to their holiday destination, but without the comfortable hotel accommodation and return flight, and frequently without the legal assistance they would expect to receive at home.
Check the JUSTICE website for updates in this area - www.justice.org.uk
Footnotes
1
Treaty on the European Union
2
Green Paper From The Commission, Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM(2003) 75 final, Brussels, 19.2.2003 and Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004) 328 final, Brussels, 28.4.2004
3
http://www.europarl.europa.eu/summits/tam_en.htm
4
http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/
5
See for example, T. Spronken and M. Attinger, Procedural Rights in Criminal Proceedings: Existing Level of Safeguards in the European Union, University of Maastrict, EC, DG JLS, 12th December 2005, and 2008 update, and JUSTICE, Open Society Justice Initiative, University of the West of England and the University of Maastricht, Effective Criminal Defence Rights, ongoing.
6
Draft Framework Decision on the rights of the individual in criminal proceedings involving international judicial co-operation, A JUSTICE Proposal, January 2002 and see the EU Procedural Safeguards page at http://www.justice.org.uk/ourwork/eu/index.html
Briefings form an important part of Justice's work. To see all our current work visit the In The News section of our website.
WHAT YOU CAN DO
1. Write something for the student human rights network.
If you would like to have your work on the website please email jshrn@justice.org.uk. We will publish original and interesting pieces relevant to the issues covered by the electronic bulletin. The maximum word limit for articles is 1500 words. All work remains the property of the author and does not necessarily reflect JUSTICE's opinion.
2. Internships with JUSTICE.
Unfortunately the deadline for summer internship positions at JUSTICE has now passed. However, do keep an eye on our website and the Autumn 2009 edition of this bulletin for news of our winter internship programme.
3. Join JUSTICE as a student/pupil/trainee member.
See http://www.justice.org.uk/supportus/becomemember/index.html for further information.
4. Get involved in the JUSTICE Student Human Rights Network.
We intend to develop the network as a way of bringing together and encouraging students, trainees and pupils interested in human rights. Would you like JUSTICE to provide a speaker for an event? Would you like to have some material on JUSTICE to distribute at your college, university, firm, chambers?
To join or contact us about anything to do with the network please email jshrn@justice.org.uk
5.
Explore human rights on the web
For JUSTICE's latest detailed submissions on proposed legislation and other political initiatives, consult www.justice.org.uk.
Every issue, we intend to provide an introduction to a number of websites that may be of interest - covering both international and UK concerns. See below also for websites relating to issues discussed in this bulletin.
Refugee and
Migrant Justice (RMJ), formerly the Refugee Legal Centre, was established
in 1992. It strives to secure justice for asylum seekers and other migrants
in the UK who seek protection or need help to secure their human rights
under UK law. In doing so, RMJ provides legal services to those who do
not have the means to pay and also spends time campaigning for positive
changes in the asylum and immigration system through research and by taking
test cases. It is the largest specialist provider of advice and representation
to ayslum seekers and other migrants needing protection in the UK. RMJ
hopes that by making the facts and human stories central in thinking about
asylum and immigration, a change can occur. In March 2009 RMJ released
a report: 'Does Every Child Matter?'. This report details how children
seeking asylum experience the immigration system.
REDRESS is a human rights organisation that helps torture survivors obtain justice and reparation, working to help restore their dignity and to make torturers accountable. The organisation runs a casework programme where it assists individuals by providing legal advice in gaining both access to the courts and redress for their suffering before national and international courts. In the past this has involved, for example, supporting UK nationals tortured in Saudi Arabia in their efforts to obtain remedies and taking the case of a man tortured in the Philippines to the UN Human Rights Committee in Geneva. REDRESS is particularly campaigning for the Torture (Damages) Bill. Torture survivors in the UK are currently unable to seek justice in English courts for the torture they endured overseas. If enacted, the Bill would allow survivors to make a claim for compensation in the courts of England and Wales, where they are unable to do so in the country in which they were tortured.
The Public Law Project (PLP) is a national legal charity which aims to improve access to public law remedies for those whose access to justice is restricted by poverty or some other form of disadvantage. Although PLP does not offer case-specific advice direct to the general public, the casework it does carry out tends to be test cases to establish or devleop a new point of law. PLP publishes information leaflets to assist members of the public, advisers, caseworkers and lawyers in understanding public law and judicial review. A major aspect of its work is research with projects focusing on the judicial review process and various aspects of alternative dispute resolution. They have included specifically 'The impact of the Human Rights Act 1998 on judicial review' in 2003 and, currently, 'Mediation and Judicial Review'. PLP is known for its action-based research that uniquely brings academics, practitioners and policy makers together on projects to address central issues concerned with access to justice.
European Criminal Bar Association
The European
Criminal Bar Association (ECBA) is an association of independent specialist
defence lawyers. Through its conferences, website and newsletter the ECBA
provides a suitable forum to access up-to-date information on legal developments
in the EU. By utilising the wealth of comparative knowledge and experience
available to it through its members, the ECBA is able to have an important
influence on policy and law making in Europe. It establishes working groups
on topical EU initiatives that meet and discuss these issues with practitioners
throughout Europe. Current projects include a letters of rights for defendants,
the European Arrest Warrant and Procedural Rights. The results of the
working group initiatives are reported in the newsletter and at conferences
or can be used as submissions that are sent to the European Commission,
Council or Parliament. It is worth noting that ECBA activities are not
limited to the European sphere and at present it is actively involved
in a project to strengthen defence in death penalty cases in China.
You are welcome to use the information in this website but must attribute
the source to JUSTICE in any written work
We
do not bear responsibility for the content of external websites