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Legality of War, More Miranda and Judicial Review Moving Out – The Human Rights Roundup

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Assad HRRWelcome back to the UK Human Rights Roundup, your regular glittering galaxy of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.

Military intervention in Syria has been greatly discussed this week in the media. Here, we look at how legal it would be for the UK to send troops over. Meanwhile, David Miranda’s hearing continues, and many judicial review claims are due, soon, to move from the High Court to the Upper Tribunal.

In the News

Al-Sweady Public Inquiry resumes today

The Al-Sweady Inquiry resumes today in London after a summer break. The Inquiry is investigating allegations of mistreatment and unlawful killing by British soldiers alleged to have taken place in Iraq in May 2004. The BBC reports that the Inquiry will hear from up to 200 British military witnesses (preliminary schedule here), having already heard from a number of Iraqi and expert witnesses.

1 Crown Office Row’s Neil Garnham QC, Neil Sheldon, Adam Wagner, Isabel McArdle, Matthew Flinn, Karwan Eskerie and Lois Williams are acting for most of the soldier witnesses.

Syria Sorrows

The legality of military intervention in Syria has dominated the news this week. Questions over legality played a crucial part in the debate, which led to a Parliamentary vote against intervention.

The attorney general, Dominic Grieve,  set out a page and a half of arguments justifying military intervention on behalf of the Government. It is claimed that ‘the legal basis for military action would be humanitarian intervention’. It is further stated that if action in the Security Council is blocked, the UK can still be permitted to intervene under the doctrine of humanitarian intervention, if three conditions are met, which is claimed to be the case.

In an excellent piece, the BBC’s Clive Coleman explains that there is a developing legal framework for military intervention on humanitarian grounds, known as the Responsibility to Protect, or R2P. He lays down the three principle elements and notes that there are a number of safeguards in R2P: ‘there needs to be powerful evidence of an ongoing atrocity; peaceful measures, such as diplomacy and sanctions, must have been exhausted; and, any force used must be specifically targeted at stopping the atrocity and protecting the civilian population’.

The Guardian reports, however, that leading experts in international law have attacked the government’s legal case, and that ‘it does not set out a sound or persuasive legal argument’. Importantly, some see the second condition as not having actually been met -  that other avenues to prevent further chemical attacks have been exhausted. Further, Philippe Sands QC states, ‘If Iraq teaches us anything, it is that Parliament must insist on seeing the full legal advice, caveats and all, and the full evidential basis on the key factual issues before proceeding to take any decision.’

The Miranda Matter

The Miranda matter continued this week with a short hearing. For the UKHRB posts on the contentious issue, see here, here and here.

At the latest interim hearing, Carl Gardner, of Head of Legal, describes how it was agreed that the injunction should continue on the same terms. This will allow the defendants to inspect the detains material in order to investigate offences under section 58 and section 58A of the Terrorism Act 2000 and under the Official Secrets Acts 1911 and 1989. The witness statement of Oliver Robbins, served on behalf of the Government, can be found here - to be read alongside Bindmans’ (Miranda’s lawyers) press release.

Gardner discusses the circumstances under which the government and police may ‘inspect, copy, disclose, transfer, distribute or otherwise interfere with the material obtained from David Miranda under Schedule 7 of the Terrorism Act 2000’. He concludes that on top of being able to still inspect material for national security purposes, they ‘can now use it for criminal investigations which they’ve been restrained from doing for the past week’.

Immigration Judicial Review mostly moves to the Upper Tribunal

The transfer of judicial review claims from the High Court to the Upper Tribunal will take place on 1 November 2013. Free Movement blog discusses which immigration judicial reviews are to be transferred and that ‘the main changes in the short term seem to be that a wig will make one look silly, the venue is less impressive and the judges are more junior in rank’.

Other news

  • Wayne David MP discusses his recent trip to Strasbourg with Sadiq Khan, Labour’s Shadow Justice Secretary. He rejects the common complaint that Strasbourg often undermines the UK, noting that most UK cases are dismissed as invalid or the Court finds in favour of the UK. Nevertheless, he does have a number of criticisms, such as the huge backlog of cases and the judges of ‘varying quality and expertise’.  However, he concludes that reform is not the aim of many Tories, it is just to leave the European Convention on Human Rights. He likens this undermining of human rights to ‘the same mind set’ that is reducing legal aid, restricting judicial review and ‘which means that some Tories are now in favour of breaking international law when it suits them’.
  • The wife of a convicted terrorist has lost a challenge against police powers to stop and question people at airports. Lord Justice Gross said the stops were ‘neither arbitrary nor disproportionate’. See the UKHRB post here.
  • The Lord Chief Justice’s annual report is available here.

Case Comments

  • Lyndon Harris, at the UK Criminal Law blog, looks at the matter of Neil Wilson’s sentence being referred to the Court of Appeal by the Attorney-General. Wilson pleaded to various sexual offences. Harris discusses how,8 months and 4 months consecutive – does not seem so low as to require the Court of Appeal to step in….if the sentence is increased, expect a double jeopardy argument for a reduction to the eventual, increased, sentence’.
  • Charles Foster dissects an important case which sees the court, for the first time, sanctioning the sterilisation of an incapacitous male patient (An NHS Trust v DE and others [2013]). He points out that it is surprising that the patient is seen to have the capacity to consent to sexual intercourse, but not to a vasectomy and that, ‘one cannot really criticise the parties for wanting the decision about vasectomy to be endorsed by the court, but it is hard to see, on the facts that were found, that it was really necessary’.

In the Courts

Upcoming Events

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UKHRB posts 


Filed under: In the news, Roundup Tagged: civil liberties campaigners, human rights, human rights news

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