Scottish Human Rights Law Group

Article 8

This week there have been several judgements issued from a variety of courts dealing with the scope of the protections afforded by Article 8 ECHR.

The first of these is Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) .

The Tribunal held that there was no justification for saying that an Article 8 claim against automatic deportation will succeed only in exceptional circumstances: the test is whether the State can justify the interference with the Article 8 rights as as a fair and proportionate balance in pursuit of a legitimate aim. The Tribunal also considered the ECJ case C-34/09 Ruiz Zambrano  and considered that the critical question was whether removal of the parent would deprive the British citizen child of the effective exercise of their residence in the UK.

A claimant who received a warning for the theft of 2 bicycles at the age of 11 failed in his initial Article 8 challenge to the warning being included on his Enhanced Criminal Records Certificate in R (T) v Greater Manchester Police & Anor [2012] EWHC 147 (Admin). The judge noted that he felt constrained by binding authority and that had he not been so constrained, he would have found that the present system in allowing no exceptions or mechanisms for review was disproportionate and incompatible with Article 8.

The European Court of Human Rights considered the scope of Article 8 with regards to environmental hazards in Hardy & Maile v the United Kingdom, Application no. 31965/07 . Whilst the Court was satisfied that Article 8 was engaged due to the potential risks posed by the Liquefied Natural Gas terminals, in this case it considered that the UK had fulfilled its positive obligations.

Legal Capacity

The European Court of Human Rights issued a judgement in the case of DD v Lithuania Application no. 13469/06 where the applicant had been placed into a care home and automatically stripped of her legal capacity. The Court found that there was a breach of her Article 5 rights given her deprivation of liberty, absence of periodic review of her detention and inability to initiate judicial review proceedingsdue to having been legally incapacitated. The Court further found that there was a breach of Article 6 (1) given the overall lack of fairness in the domestic proceedings determing her legal capacity.

Closer to home, the Mental Welfare Commission for Scotland published a report entitled ‘Powers of Attorney and their Safeguards’  which raises concerns and makes recommedations regarding increasing the safeguards in place to protect those granting Powers of Attorney following an investigation into the abuse of a couple with learning difficulties. The Law Society of Scotland is to work with the MWC in drawing up guidance for solicitors to ensure clarity.

Criminal law

In the criminal courts, the High Court of Justiciary held that the inclusion of a mandatory condition requiring participation by the accused in an identification parade or submission of bodily samples or prints for the granting of bail was incompatible with Article 5 and that the amendment enacted by the Scottish Parliament in s58 of the Criminal Justice and Licensing (Scotland) Act 2010 should be declared to be ‘not law’. The judgement is available here.

The Lord Justice Clerk heard appeals raising challenges to notification requirements under the Sexual Offences Act 2003 and upheld the challenges made by the appellants, noting that registration places onerous restrictions and requirements on the registered offender and that the purpose of registration was protective, not punitive. Details of the case were reported by the Scotsman here.

Other news

The Supreme Court ruled unanimously in Sugar v BBC & Anor [2012] UKSC 4 that an internal BBC report analysing its coverage of the Israel/Palestine conflict did not fall under the scope of the Freedom of Information Act 2000 as it was ‘information held for the purposes of journalism’. The majority of the Justices held that information need only be held partly for the purposes of journalism, art or literature to fall outside the scope of the FOIA.

The Cabinet Office has posted responses to the Justice and Security Green Paper which proposes introducing secret trials (‘Closed Material Procedures’) into civil courts. A group of Special Advocates has stated that the proposals constitute a “departure from the foundational principle of natural justice”. The responses are available here.

Finally, the House of Lords Communications Committee published a report making a series of recommendations regarding the many legal issues surrounding investigative journalism. The Committee recommended the introduction of a two stage internal audit process for testing whether a story falls within the public interest. The report is available here.