Law and Rights
The Criminal Justice Act 2003 Part 11 Chapter 2 (CJA) enacted major changes to the law relating to the admissibility in criminal trials of hearsay evidence. The changes were based on Law Commission proposals though Parliament did not completely follow the Commission's scheme. Since they came into force, the CJA provisions have been the subject of extensive case law. In an article in The Guardian 17th December, Joshua Rozenberg looked at certain cases where the CJA provisions were examined at the European Court of Human Rights - ECHR cases won by UK government show flexibility of the human rights system.
With the General election looming in 2015, voters would do well to ask candidates what they or their party plan to do about human rights protection. I will leave it to a later post to look more closely at just what the various parties are proposing.
As Rozenberg says: - " ..... no parliament can overturn the decisions of the court?s grand chamber ? but the European court, like any other institution, is capable of getting things wrong. And, when it is persuaded that it has made a mistake, it is not too grand to think again.
Crucially, it was persuaded to do so in this case by the careful reasoning of the court of appeal and the supreme court. That?s what the court would lose if the UK pulled out of the human rights convention.
And just in case the message is not clear, the court has just refused to reopen the vexed question of prisoners voting. Its decision in August refusing damages or even costs to disenfranchised prisoners (though confirming a rights violation) is now final. So this issue has been parked until after the general election. Though prisoners will not have a say, Strasbourg will be watching the voting with interest."
The cases:
Al-Khawaja and Tahery v UK, a chamber of the court ruled that article 6 would be breached if a conviction had been based solely or decisively on statements that a defendant had received no opportunity of challenging. English judges did not agree with this decision and the matter reached the UK Supreme Court in December 2009 - supreme court decision. In December 2011, the E Ct HR grand chamber modified its earlier ruling so that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of article 6. However, there would still a breach of the defendant?s rights unless there were counterbalancing factors, including strong procedural safeguards, to compensate for the difficulties caused to the defence and the dangers of relying on hearsay evidence.
See the recent Strasbourg decision in Horncastle and others v UKtrasbourg chamber decision.
- Prisoner Voting - Scoppola V Italy - Will Prisoners Finally Have To Be Granted The Right To Vote?
The European Court of Human Rights has announced that, on 22nd May, the Grand Chamber will hand down judgment in Scoppola v. Italy (N° 3) concerning a prisoner?s right to vote. The case concerns the applicant?s disenfranchisement following his...
- Prisoner Voting ... Uk Government Given 6 Months To Introduce Legislation ...
On 15th March Law and Lawyers noted that the U.K. government had requested the Grand Chamber of the European Court of Human Rights to consider the case of Greens and M.T. v U.K. decided by a chamber of the court on 23rd November 2010. The Grand...
- A Further Bout With Strasbourg Coming Up? Compensation For Miscarriage Of Justice And Cornish Pasties.
Argentoratum locutum, iudicium finitum According to The Times (22nd February) Britain's most senior judges have warned that the European Court of Human Rights has rejected fundamental rules of criminal evidence enacted by Parliament to ensure that...
- Convicting Solely Or Decisively On Hearsay Evidence: Strasbourg And London Lock Horns.
In The Guardian 7th April, Afua Hirsch looked at a speech made by the Lord Chief Justice (Lord Judge) at a Judicial Studies Board event. Lord Judge made many interesting observations. The speech prompted Hirsch to observe that the European...
- Prisoners And Voting
In Hirst v United Kingdom (2004) 38 EHRR 40 a Chamber of the European Court of Human Rights ruled that the U.K.'s blanket ban on convicted prisoners voting in elections was in breach of the Convention. That decision was confirmed by the Grand...
Law and Rights
Strasbourg decides FOR the UK government
With the General election looming in 2015, voters would do well to ask candidates what they or their party plan to do about human rights protection. I will leave it to a later post to look more closely at just what the various parties are proposing.
As Rozenberg says: - " ..... no parliament can overturn the decisions of the court?s grand chamber ? but the European court, like any other institution, is capable of getting things wrong. And, when it is persuaded that it has made a mistake, it is not too grand to think again.
Crucially, it was persuaded to do so in this case by the careful reasoning of the court of appeal and the supreme court. That?s what the court would lose if the UK pulled out of the human rights convention.
And just in case the message is not clear, the court has just refused to reopen the vexed question of prisoners voting. Its decision in August refusing damages or even costs to disenfranchised prisoners (though confirming a rights violation) is now final. So this issue has been parked until after the general election. Though prisoners will not have a say, Strasbourg will be watching the voting with interest."
The cases:
Al-Khawaja and Tahery v UK, a chamber of the court ruled that article 6 would be breached if a conviction had been based solely or decisively on statements that a defendant had received no opportunity of challenging. English judges did not agree with this decision and the matter reached the UK Supreme Court in December 2009 - supreme court decision. In December 2011, the E Ct HR grand chamber modified its earlier ruling so that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of article 6. However, there would still a breach of the defendant?s rights unless there were counterbalancing factors, including strong procedural safeguards, to compensate for the difficulties caused to the defence and the dangers of relying on hearsay evidence.
See the recent Strasbourg decision in Horncastle and others v UKtrasbourg chamber decision.
- Prisoner Voting - Scoppola V Italy - Will Prisoners Finally Have To Be Granted The Right To Vote?
The European Court of Human Rights has announced that, on 22nd May, the Grand Chamber will hand down judgment in Scoppola v. Italy (N° 3) concerning a prisoner?s right to vote. The case concerns the applicant?s disenfranchisement following his...
- Prisoner Voting ... Uk Government Given 6 Months To Introduce Legislation ...
On 15th March Law and Lawyers noted that the U.K. government had requested the Grand Chamber of the European Court of Human Rights to consider the case of Greens and M.T. v U.K. decided by a chamber of the court on 23rd November 2010. The Grand...
- A Further Bout With Strasbourg Coming Up? Compensation For Miscarriage Of Justice And Cornish Pasties.
Argentoratum locutum, iudicium finitum According to The Times (22nd February) Britain's most senior judges have warned that the European Court of Human Rights has rejected fundamental rules of criminal evidence enacted by Parliament to ensure that...
- Convicting Solely Or Decisively On Hearsay Evidence: Strasbourg And London Lock Horns.
In The Guardian 7th April, Afua Hirsch looked at a speech made by the Lord Chief Justice (Lord Judge) at a Judicial Studies Board event. Lord Judge made many interesting observations. The speech prompted Hirsch to observe that the European...
- Prisoners And Voting
In Hirst v United Kingdom (2004) 38 EHRR 40 a Chamber of the European Court of Human Rights ruled that the U.K.'s blanket ban on convicted prisoners voting in elections was in breach of the Convention. That decision was confirmed by the Grand...