Tag: human

UK Supreme Court Upholds Trial with no Jury

On 6 June 2019, the UK Supreme Court ruled, unanimously, in the case of In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, that trials with no juries could continue for terrorism-related offences committed in Northern Ireland during the Troubles. The Court held that juries were neither indispensable for securing a fair trial, nor required under the European Convention on Human Rights.

Trials with no juries were introduced in Northern Ireland by the Northern Ireland (Emergency Provisions) Act 1973 in response to a report prepared in 1972 by Lord Diplock. They came to be known as Diplock trials and continued until 2007. Diplock trials were meant to ensure that defendants guilty of terrorism-related offences could not escape punishment because of biased juries. In 2007, the Justice and Security (Northern Ireland) Act 2007 effectively abolished Diplock trials but allowed the Director of Public Prosecutions for Northern Ireland to bring back this mode of trial on an exception basis.

Under section 1 of the the Justice and Security (Northern Ireland) Act 2007, a trial without a jury can take place where “there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury” (s1(2)(b)), “the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons” (s1(6)) and there is no evidence of bad faith or dishonesty (s7(1)(a)&(b)). Such a trial also cannot violate the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights (s7(2)).

The Applicant in In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, Mr Hutchings, commanded a patrol of Life Guards regiment of the British Army in 1974 which routinely engaged in combat against the Provisional Irish Republican Army. On 15 June 1974, a Life Guards patrol encountered a man, Mr Cunningham, who seemed startled and, seeing the patrol, climbed a gate into a field and started running away. Mr Hutchings, together with two other members of the patrol, pursued the man and after shouting a number of commands to stop, Mr Hutchings and another soldier fired shots at Mr Cunningham who, as a result, was killed. Subsequently, it turned out that Mr Cunningham had limited intellectual capacity, was unarmed and was running towards his home.

In 2015, following a review, Mr Hutchings was charged with the attempted murder and the Director of Public Prosecutions for Northern Ireland certified his case under section 1 of the the Justice and Security (Northern Ireland) Act 2007 as appropriate for a trial without a jury. Mr Hutchings filed a Judicial Review challenging this decision and the case eventually reached the Supreme Court.

On the relationship between a fair trial and juries, the Supreme Court ruled:

“34. It is important to focus on the need for a fair trial. Trial by jury is, of course, the traditional mode of trial for serious criminal offences in the United Kingdom. It should not be assumed, however, that this is the unique means of achieving fairness in the criminal process. Indeed, as the Court of Appeal’s statements in Jordan show, trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means where those circumstances obtain of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.

“35. So-called Diplock trials took place in Northern Ireland between 1973 and 2007. No one suggests that this mode of trial failed to deliver fairness of process, by reason of the fact that the trial took place before a judge sitting without a jury. Although Article 6 of ECHR (which guarantees a right to a fair trial) is not prayed in aid by the appellant in this case, it is interesting to reflect that it has been held that this article does not require trial by jury. As the European Commission of Human Rights observed in X and Y v Ireland (Application No 8299/78) (1980) 22 DR 51, para 19, “… Article 6 does not specify trial by jury as one of the elements of a fair hearing in the determination of a criminal charge”.

“36. It is, of course, to be remembered that the system of trial introduced as a result of Lord Diplock’s report (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (1972) (Cmnd 5185)), required the trial judge to give a reasoned judgment if the defendant was convicted. And that a defendant, upon conviction, was entitled to an automatic right of appeal, not only on points of law but on the factual conclusions reached and inferences drawn by the trial judge. These remain features of trials without a jury since the 2007 Act – section 5(6) and (7).

“37. The statement made by Lord Judge CJ in R v Twomey [2010] 1 WLR 630 at para 10 (relied on by the appellant) that, “[i]n this country trial by jury is a hallowed principle of the administration of criminal justice … properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation” must be viewed against this background. In the first place, although the Lord Chief Justice described entitlement to trial by jury as a right, he did not suggest that this was an absolute right; indeed, he accepted that it could be constrained in certain circumstances…”

Diplock trials were introduced at the time when the UK was struggling with biased juries refusing to convict defendants guilty of violent offences committed as part of a religious unrest in Northern Ireland. Interestingly, a similar struggle took place in the 50s and 60s in Southern States in the US where all white juries often refused to convict defendants guilty of violence against African-Americans. However, the US Federal Government, unlike the UK Government, was not in the position to interfere with jury trials as this would have been contrary to the principle of federalism and would have also violated a constitutional right to being tried before a jury guaranteed by Article Three of the Constitution as well as the 6th Amendment (applicable to States by virtue of the 14th Amendment). Instead, the Federal Government often tried defendants acquitted in State Courts in Federal Courts on other charges, such as ‘violation of civil rights’. The UK Government, on the other hand, was never constrained by a written constitution and was able to introduce trials without juries to address the problem of biased jurors. In fact, biased juries is not the only reason a trial without a jury can take place in the UK. Apart from trials involving terrorism-related offences committed in Northern Ireland, trials without juries are also allowed in the UK in complex fraud cases and where there is a risk of jury tampering (sections 43-44 of the Criminal Justice Act 2003).

ECtHR Limits Right to Lawyer during Police Questioning

On 23 May 2019, the European Court of Human Rights ruled, 6-1, in the case of Doyle v Ireland (App. no.: 51979/17), that the European Convention on Human Rights did not guarantee the right to have a lawyer physically present during police questioning. In doing so, the Court followed a new approach to Article 6 of the European Convention on Human Rights and refused to be influenced by American jurisprudence such as the famous case of Miranda vArizona, 384 U.S. 436 (1966).

The case of Doyle v Ireland (App. no.: 51979/17) concerned a murder suspect who was apprehended by the Irish Police and subjected to multiple rounds of questioning. Before the first questioning and in between the later rounds, he was allowed consultation with his solicitor. Further consultation with the solicitor was also allowed during an interview via telephone which caused the interview to be paused. However, the solicitor was not allowed to be physically present during questioning itself. During the trial for murder, the Applicant sought to exclude the confession made during questioning on the grounds that he was denied the right to legal assistance. A judge, without a jury, allowed the confession to be admitted in evidence and the Applicant was eventually convicted. On appeal, the Irish Supreme Court held that the Applicant’s argument for an absolute rule of presence of a lawyer rested almost entirely on the reasoning of the US Supreme Court in Miranda vArizona, 384 U.S. 436 (1966) and had no support in Irish jurisprudence.

The argument before the European Court of Human Rights was twofold. Firstly, the Applicant argued that the lack of access to a lawyer during questioning rendered the whole trial unfair within the meaning of Article 6(1) and, secondly, that it breached also his specific rights under Article 6(3) of the Convention. However, relying on the 2018 case of Beuze v Belgium (App. no.: 71409/10), the Court deemed it appropriate to consider the claim under one heading of the fairness of the trial:

71.  Compliance with the requirements of a fair trial must thus be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1.

72.  According to the Court, those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Beuze, cited above, § 122, and Ibrahim and Others, cited above, §§ 251 and 262 with further references).”

Employing what it described as a ‘very strict scrutiny’, the European Court of Human Rights found (at paras [79]-[99]) that the overall fairness of the proceedings was maintained despite a limited access to legal assistance because:

  • the Applicant, as an adult native English speaker, was not a vulnerable person;
  • questioning rounds were not excessively long;
  • extensive breaks were allowed during questioning;
  • access to lawyer by phone or, at times, in person, was allowed on request;
  • the Applicant was physically and mentally strong throughout questioning;
  • there was no ill-treatment of the Applicant;
  • the applicant was able to challenge the use of the statements made during his questioning before the trial court;
  • the Applicant had the opportunity to re-argue the admissibility of the statements on appeal before the Court of Appeal and the Supreme Court;
  • the Applicant’s conviction was not based solely on the statements made during questioning;
  • the Applicant was convicted by a jury which had seen videos of his questioning;
  • the Applicant was notified of his rights on arrest.

Consequently, the majority of the European Court of Human Rights held that there was no violation of Article 6 of the European Convention on Human Rights. However, Judge Yudkivska submitted a dissenting opinion, where she argued that Beuze v Belgium (App. no.: 71409/10) had been incorrectly decided and the Majority Opinion was building on its ‘unfortunate legacy’ (para [B]).

Judge Yudkivska further argued (at para [B]) that the Court should follow the 2008 case of Salduz v Turkey (App. no.: 36391/02) and its line of reasoning:

Salduz thus seemingly advanced a test whereby if an applicants access to a lawyer has been restricted and there is an absence of compelling reasons to justify that restriction, the proceedings will be irreparably prejudiced and therefore there will be a finding of a violation of Article 6. Accordingly, in accordance with (what I consider to be the “correct” interpretation of) Salduz, the Court ought to have determined that, due to the absence of any compelling reasons to justify the applicants restricted access to a lawyer (paragraph 84), there has been a violation of Article 6 §§ 1 and 3 (c) in this case.”

Judge Yudkivska also pointed (at para [B]) to the relationship between the jurisprudence of the European Court of Human Rights and other Courts:

“…The Salduz jurisprudence on the right to have access to a lawyer (including to have a lawyer present during interrogations), with its clear prohibition of blanket restrictions, was followed in subsequent cases and is supported by a number of international instruments and case-law (see for example, CPT/Inf (92)3-part1[6]; [CPT/Inf (2011) 28]CPT/Inf(2011)28-part1[7]; E/CN.4/1998/39/Add.4[8]; and Miranda v Arizona384 US 436 (1966)).”

Finally, Judge Yudkivska concluded (at para [C1]) that “…the above interpretation of Salduz would result in a more fair and just conclusion in the present case – namely an automatic finding of a violation due to the absence of compelling reasons to justify the restrictions on the applicants right of access to a lawyer…

The Grand Chamber Vindicates Russian Opposition Leader Navalny (Again) (ECtHR)

On 9 April 2019, the European Court of Human Rights ruled unanimously, in the case of Navalny v Russia (No. 2) (App. no. 43734/14), that Russia violated Navalny’s right not to be arbitrarily detained under Article 5, his freedom of expression under Article 10 while at the same time acting contrary to Article 18 of the European Convention on Human Rights. The judgment comes after the European Court of Human Rights vindicated Navalny in Navalny v Russia (App. no.: 29580/12) in November 2018.

The November 2018 ruling in in Navalny v Russia (App. no.: 29580/12) concerned Navalny’s complaint against the Russian government claiming a political persecution through different methods and over an extensive period of time. In respect of Article 5, Navalny complained about having been arbitrarily arrested on seven occasions while attending peaceful demonstrations, including twice for an alleged failure to obey a police order (on 9 May 2012 and 24 February 2014) and about having been detained for over three hours in violation of the statutory time-limit pending his trial (paras. 68-9). In respect of Article 6, Navalny argued that on all seven occasions when he was arrested, he was unfairly convicted of an administrative offence in violation of his right to a fair hearing, including the right to the equality of arms, presumption of innocence, impartiality of the tribunal and the adversarial nature of the proceedings (para. 73). In respect of Article 11, Navalny claimed that arresting him seven times while attending peaceful demonstrations had violated his freedom of peaceful assembly (para. 85). In November 2018, the European Court of Human Rights agreed with most of Navalny’s claim (discussed by The Jurist’s Corner at length here).

The April 2019 ruling concerns Navalny’s house arrest which was ordered by a Russian domestic Court pending Navalny’s criminal trial for an alleged fraud and money laundering. Navalny lodged a complaint with the European Court of Human Rights claiming that the decision to place him under house arrest, together with a further ban on communication with anyone other than his close family, was designed to prevent him from pursuing his public and political activities as an opposition leader therefore violating his rights under Articles 5 and 10 of the European Convention on Human Rights. Navalny also claimed, similarly as in his previous case, that the actions of the Russian government were contrary to Article 18 of the Convention which prescribes that “the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” In response, the Russian government argued that the decision to place Navalny under house arrest was made due to his non-compliance with a previous preventive measure not to leave Moscow during the investigation.

In relation to an arbitrary deprivation of liberty contrary to Article 5 of the European Convention on Human Rights, the European Court of Human Rights first acknowledged that subjecting Navalny to a house arrest over the period of 10 months amounted to a deprivation of liberty (para 59). The Court then analysed Navaly’s history of complying with previous preventive measures and found that there was no evidence of any non-compliance which led the Court to hold that there was no credible risk of absconding. Ultimately, the Court ruled that “the domestic courts had no criminal-process reasons which called for the undertaking to be converted into house arrest. The house arrest was therefore ordered against the applicant unlawfully.” (para 63). On the subject of Article 10 of the Convention, the Court first acknowledged that the ban on “(i) leaving his flat, (ii) communicating with anyone apart from his immediate family, (iii) using means of communication and the Internet, and (iv) making statements, declarations, or addresses to the public or commenting on the criminal case to the media” (para 74), which was attached to the house arrest order, amounted to an interference with Navalny’s freedom of expression under Article 10 of the Convention. Then, the Court held that most of the ban was unlawful under Russian domestic law, which had been admitted by a domestic Court (paras 76-77). Ultimately, the Court held that the ban was “applied without any apparent connection with the requirements of the criminal investigation. The ban on the applicant’s access to means of communication in the house-arrest order did not serve the purpose of securing his appearance before the investigator or at his trial, and, as with the decision to place him under house arrest, had no connection with the objectives of criminal justice.” (para 80).

Similarly as in his previous case before the European Court of Human Rights, Navalny argued, beside his substantive claim under Articles 5 and 10 of the European Convention on Human Rights, that Russia also violated Article 18 of the Convention. In the November 2018 ruling, the judges voted 14-3 in favour of finding a violation of Article 18. In the April 2019 ruling, the Court was unanimous:

93. The Court has found above that the applicant’s detention under house arrest was ordered unlawfully, and that the ban on his access to means of communication did not pursue a legitimate aim (see paragraphs 63 and 81 above). In view of those conclusions, the Court may dispense with an assessment of the issue of plurality of purposes in respect of those measures and focus on the question whether, in the absence of a legitimate purpose, there was an identifiable ulterior one (see Navalnyy, cited above, § 166).

94. The request to have the undertaking not to leave Moscow replaced with house arrest was lodged on 26 February 2014, immediately following the applicant’s two arrests on 24 February 2014 for taking part in unauthorised public gatherings; both arrests were found by the Court to be in breach of Articles 5 and 11 of the Convention, and one of them also in breach of Article 18 (see Navalnyy, cited above, §§ 71-72, 125-26, 138, 146 and 175). Moreover, the Court noted the pattern of the applicant’s arrests and found that the grounds given for his deprivation of liberty had become progressively more implausible (see Navalnyy, cited above, §§ 167-68). It accepted the allegation that he had been specifically and personally targeted as a known activist (ibid., § 170). His deprivation of liberty in the present case must be seen in the context of that sequence of events.

95. The Court observes next that the applicant’s house arrest, together with the restrictions on his freedom of expression, lasted for over ten months. This duration appears inappropriate to the nature of the criminal charges at stake; in particular, no such measures were applied to the applicant’s brother, who was the main accused in the fraud case. The restrictions imposed on the applicant, especially the communication ban, which even the domestic courts considered unlawful (see paragraph 77 above), became increasingly incongruous over the course of that period, as their lack of connection with the objectives of criminal justice became increasingly apparent (see paragraph 80 above).

96. In Navalnyy, cited above, in its discussion of Article 18 of the Convention in connection with Articles 5 and 11, the Court relied on the converging contextual evidence that at the material time the authorities were becoming increasingly severe in their response to the conduct of the applicant and other political activists and, more generally, to their approach to public assemblies of a political nature (ibid., § 172). It also referred to the broader context of the Russian authorities’ attempts to bring the opposition’s political activity under control (ibid., § 173) and noted the applicant’s role as an opposition politician playing an important public function through democratic discourse (ibid., § 174).

97. The Court considers that the evidence relied on in Navalnyy is equally pertinent to the present case and is capable of corroborating the applicant’s allegations that his placement under house arrest with restrictions on communication, correspondence and use of the Internet pursued the aim of curtailing his public activity, including organising and attending public events.

98. In view of the above, the Court considers that the restrictions on the applicant’s right to liberty in the present case pursued the same aim as in Navalnyy, namely to suppress political pluralism. This constituted an ulterior purpose within the meaning of Article 18, which moreover attained significant gravity (ibid., § 174).

99. There has accordingly been a violation of Article 18 taken in conjunction with Article 5 of the Convention.”

A violation of Article 18 of the European Convention on Human Rights necessarily implies an element of bad faith on the part of a state. Very rarely does a violation of a substantive right (such as the right not to be arbitrarily detained under Article 5 or the freedom of expression under Article 10 of the Convention) entail a violation of Article 18 of the Convention. Most cases before the European Court of Human Rights in which applicants are successful concern situations where states acted in good faith but nevertheless violated some Convention rights. But a violation of Article 18 means that the motives of the Russian government, when dealing with Navalny, where malicious. This conclusion is only reinforced by the fact that the ruling on Article 18 was unanimous.

Preventive Detention Upheld for 2011 Royal Wedding Opponents (ECtHR)

On 28 March 2019, the European Court of Human Rights ruled unanimously, in the case of Eiseman-Renyard v UK (App. No.: 57884/17), that the preventive detention of opponents of the 2011 Royal Wedding did not breach their rights under Article 5 of the European Convention on Human Rights. In fact, relying on the doctrine of subsidiarity, the Court did not even properly consider the merits of the case but instead classified the application as ‘manifestly ill-founded’ and therefore wholly inadmissible.

The main applicant, Hannah Eiseman-Renyard, along with other applicants, arrived in the centre of London between 10 and 11 AM on the day of the wedding of the Duke and Duchess of Cambridge (29 April 2011) with the intention to participate in a ‘zombie picnic’ organised by the ‘Queer Resistance’. Before any demonstration took place, the applicant had been arrested by the police for the purpose of ‘preventing a breach of the peace’. The police were acting on information that the group was planning to gather at Westminster Abbey at 11 AM to throw maggots (as confetti) during the wedding procession. The applicant was taken to the Belgravia police station where she were detained until 3:45 PM, i.e. until the wedding had ended. She was then released with no charges.

Firstly, the ECtHR considered the classification of the complaint and ruled that it should be reviewed under Article 5(1)(c) of the ECHR, determining that Article 5(1)(b) of the ECHR, even though raised by the applicant, was irrelevant in this case in light of the holding in S., V. and A. v. Denmark (App. Nos.: 35553/12, 36678/12 & 36711/12) (para 39). Article 5(1)(b)&(c) state:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

Secondly, the ECtHR considered the domestic legal basis for the detention. The Court recognised that “breach of the peace is a common-law concept dating back to the tenth century” whereby “every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur” (R (Laporte) v Chief Constable of Gloucester [2007] 2 AC 105) (para 26). In line with the domestic authorities, the Court recognised that “the power is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future. Moreover, there is only a power of arrest if it is a necessary and proportionate response to the risk.” (para 27). In this respect, the ECtHR held that “there was no dispute that the applicants’ detention was lawful under domestic law. It may be noted that the High Court was satisfied that the arresting officers had reasonable grounds for believing that a breach of the peace was imminent.” (para 41).

Thirdly, the ECtHR considered the compliance of the common law offence of ‘breach of peace’ with the rights guaranteed under Article 5 of the ECHR. On that issue, the Court found that:

The offence of breach of the peace which all the applicants were charged with was sufficiently concrete and specific in the circumstances. Against the factual background of the royal wedding in terms of crowd size and international interest, coupled with the threat level of ‘severe’ in the United Kingdom at the relevant time, the Court finds that an objective observer would be satisfied that the applicants would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by their detention. Finally, it notes that the applicants were released as soon as the imminent risk had passed and in all cases their detention was for a matter of hours, which the Grand Chamber identified as broadly appropriate in the context of preventive detention…” (para 43).

Finally, the ECtHR relied on the doctrine of subsidiarity whereby an in-depth consideration of relevant issues in light of ECtHR’s jurisprudence by a domestic court creates a strong presumption in favour of a domestic ruling. In line with this approach, the Court deferred to the domestic rulings:

“In the circumstances of the present case the domestic courts in fact examined these elements in the context of their analyses of national law, the Court of Appeal observing that there was no practical distinction between the test in common law and under the Convention (see § 87). The Supreme Court noted that:

“5. The Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding. After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace. It dismissed as unrealistic the argument that lesser measures would have been adequate to meet the degree of risk. Continuous police supervision was not a feasible option, given the many demands on police resources. The claims that the police acted unlawfully as a matter of domestic law therefore failed.

The Court considers there are no cogent reasons (see S., V. and A. v. Denmark, cited above, § 154) which would lead it to depart from the Supreme Court’s finding for the second and fifth applicants that:

“31. In this case there was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation”…

Overall, the ECtHR held “that the domestic courts struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from disturbing the public order and a causing danger to the safety of individuals and public security.”

UK Supreme Court Limits Compensation for People with Quashed Convictions

On 30 January 2019, the UK Supreme Court held 5-2, in the case of R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 2, that people convicted of criminal offences, who have their convictions subsequently overturned, had no right to compensation unless they could demonstrate that the new evidence proved ‘beyond reasonable doubt‘ that they had not committed the offences.

The Appellant in this case spent about seven years in prison before his conviction was eventually quashed for being unsafe in light of newly discovered evidence. He then applied for compensation under section 133 of the Criminal Justice Act 1988 (as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014). The entitlement to compensation under Section 133 of the Criminal Justice Act 1988 is based on the concept of ‘miscarriage of justice’ which is defined under section 133(1ZA) of the Criminal Justice Act 1988 as occurring ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence‘. The Appellant’s application for compensation was refused by the Secretary of State for Justice on the grounds that, inasmuch as newly discovered evidence cast doubt on his conviction as to render it unsafe and therefore resulted in quashing, it did not prove beyond reasonable doubt that the Appellant had not committed the offence. The Appellant brought judicial review proceedings against the decision claiming that the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988 was incompatible with the presumption of innocence under Article 6(2) of the European Convention on Human Rights.

In the majority opinion written by Lord Mance, the five Justices held that based on the jurisprudence of the European Court of Human Rights, most notably the case of Allen v UK (App. no. 25424/09), the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988 did not breach Article 6(2) of the European Convention on Human Rights. The case was concerned with claims for compensation where new evidence rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted. This type of claims also falls short of the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988, yet the European Court of Human Rights did not consider it incompatible with Article 6(2) of the ECHR. Even though Allen v UK (App. no. 25424/09) was never concerned with the requirement to prove innocence beyond reasonable doubt itself, the reasoning of the European Court of Human Rights prompted the majority in R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 2 to uphold section 133(1ZA) of the Criminal Justice Act 1988 and confirmed that the Appellant had no right to compensation despite spending seven years in prison.

Lord Reed and Lord Kerr dissented. Lord Reed, with whom Lord Kerr agreed, accepted that compensation could be denied under Allen v UK (App. no. 25424/09) in cases where new evidence rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted, but argued that section 133(1ZA) of the Criminal Justice Act 1988 was nevertheless incompatible with the presumption of innocence under Article 6(2) of the ECHR, because it effectively required the Secretary of State for Justice to decide whether persons, whose convictions had been quashed, established that they were innocent (para 187).

Given the outcome of the case, it is possible that the European Court of Human Rights will have a final say on the issue.

Secret UK Police Database of Peaceful Protesters Violates Article 8 of ECHR (ECtHR)

On 24 January 2019, the European Court of Human Rights ruled unanimously, in the case of Catt v UK (App. no.: 43514/15), that the retention by police of information on the Domestic Extremism Database about a 91 year-old applicant’s involvement in political protests breached his right to private life under Article 8 of the European Convention on Human Rights.

The applicant had participated in political protests for decades and he had never been convicted of any criminal offence. However, the police had collected his personal data and retained it in a searchable database under ‘Domestic Extremism’, without his knowledge or consent. There was also nothing stopping the police from retaining the data indefinitely, even in the absence of any evidence of criminal behaviour on the part of the applicant. In 2015, the UK Supreme Court ruled 4-1, in the case of R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9, that the applicant’s rights under the European Convention on Human Rights were not violated by the retention of his data by the police. The European Court of Human Rights disagreed.

The Court first held that there had been indeed “a pressing need to collect the personal data about the applicant” as “it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value” (para [117]). Secondly, the Court also recognised that the police had indeed had appropriate reasons to gather intelligence about members of Smash EDO (the protest group to which the applicant belonged) as the group had members that were known to be violent and potentially criminal (although not the applicant himself) and the applicant “had after all decided to repeatedly and publicly align himself with the activities of a violent protest group” (para [118]).

However, in the end, the majority of the Court, under the heading of ‘proportionality analysis’ of Article 8(2), decided that there was no “pressing need to retain the applicant’s data“. Although the Court recognised that personal data (such as applicant’s) might be retained over some time after having been legitimately collected, the whole scheme lacked appropriate safeguards preventing potential abuse (para [119]). The Court was most concerned with the fact that “whilst the applicant could and did request the disclosure and destruction of his data, this safeguard appears to have been of limited impact given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data… So far as the Court is aware, at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database… despite the fact that the police concluded, and the domestic courts affirmed, that the applicant was not considered a danger to anyone” (para [120]).

Finally, the Court pointed to the possibility of undermining the democratic process by the government collecting, retaining and potentially abusing data about one’s legitimate political activities:

“123. Moreover, the absence of effective safeguards was of particular concern in the present case, as personal data revealing political opinions attracts a heightened level of protection (see paragraph 112 above). Engaging in peaceful protest has specific protection under Article 11 of the Convention, which also contains special protection for trade unions, whose events the applicant attended (see paragraph 10, above). In this connection it notes that in the National Coordinator’s statement, the definition of “domestic extremism” refers to collection of data on groups and individuals who act “outside the democratic process”. Therefore, the police do not appear to have respected their own definition (fluid as it may have been (see paragraph 105)) in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-�I). The Court has already highlighted the danger of an ambiguous approach to the scope of data collection in the present case (see paragraph 97 above). Accordingly, it considers that the decisions to retain the applicant’s personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion, and that in the circumstances its retention must have had a “chilling effect”.”

Interestingly, although the judgment was unanimous as to its outcome, it contained a Concurring Opinion of Judge Koskelo and Judge Felici. The opinion focused on the fact that the issue of the lack of safeguards and the possibility of abuse of data retained in the database should have been dealt with under the heading of ‘in accordance with the law’ of Article 8(2), as “…the phrase “in accordance with the law” […] requires not only that the impugned measure must have a basis in domestic law, but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of Article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects...” (para [2]).

The Judges held that, given the lack of sufficient safeguards concerning the database and the fact that it the applicant was unable to get his data deleted even in the absence of any evidence of criminality on his part, “…it would have been appropriate for the Chamber to focus its analysis more thoroughly and consistently on the assessment of the “quality of the law” aspect of the case, because that is where the crux of the case lies, instead of leaving that issue open and resolving the case on the basis of the assessment of “necessity”. …[T]he quality of the relevant legal framework was not adequate in a context such as the present one, and therefore the interference was not “in accordance with the law” within the meaning of Article 8 § 2. This finding is sufficient to conclude that there has been a violation of Article 8″ (para [15]).

It is worth remembering that the European Court of Human Rights has not said in this case that a database containing information about political activists violates the European Convention on Human Rights, even where there is no evidence of any criminal activities. The case in fact has confirmed that states are entitled to gather intelligence about political protesters if the group they associate themselves with could be reasonably believed to produce criminal activities. However, any database containing such intelligence must have adequate safeguards concerning the retention policy, access by 3rd parties as well as persons concerned and the possibility of deletion, either automatic or on a person’s request.

Homeschooling Unprotected by ECHR (ECtHR)

On 10 January 2019, the European Court of Human Rights ruled, in the case of Wunderlich v. Germany (App. no.: 18925/15), that the German ban on homeschooling did not breach the right to private and family life under Article 8 of the European Convention on Human Rights. The case was brought by a Christian family who had refused to register their oldest daughter in a school in accordance with German law. As a result, they were fined and prosecuted by the German authorities and the child was temporary taken into care to enforce the school attendance requirement.

The European Court of Human Rights held that the actions of the German state, although interfered with the Article 8(1) rights, were justified for the purposes of protecting the health, rights and freedoms of the children (under Article 8(2)). When considering the case, the Court referred to its previous jurisprudence on the issue of compulsory public education. It recalled that “the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems...” (para 50).

The Court held further that although the removal of the child from the parent’s care was a very intrusive measure, it was not disproportionate given that it was only temporary and that all other measures (such as fines and regulatory penalties) had already failed to persuade the parents to comply with the school requirement. In considering the question of proportionality, the Court gave “due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation...” (para 47).

The case leaves no doubt that homeschooling is not protected under the European Convention on Human Rights. In contrast, the US Supreme Court has ruled on several occasions that the US Constitution protects the right to homeschooling. As early as 1925, in the case of Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon statute requiring all children to attend public school. It was held that children were not ‘the mere creature[s] of the state’ (para 535) and that the responsibility for education belonged to parents so the Court deemed the ability to make educational choices a ‘liberty’ within the meaning of the 14th Amendment (thereby expanding the so called Substantive Due Process doctrine in its jurisprudence). Furthermore, almost 50 years later, in the case of Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court also upheld the right of an Amish family to withdraw their children from public school past 8th grade It was ruled that States could not force families to send their children to attend school where it would infringe their (legitimate) religious beliefs protected under the First Amendment.

Assisted Suicide Remains Unlawful (UKSC)

On 27 November 2018, in the case of R (on the application of Conway) Secretary of State for Justice [2018] UKSC B1, the UK Supreme Court refused to consider an appeal from the High Court (Divisional Court) where the Court had upheld the ban on assisted suicide as compatible with Article 8 of the European Convention on Human Rights. Assisted suicide remains illegal in the United Kingdom under the Suicide Act 1961, s2(1), despite numerous attempts to overturn the ban as in breach of the European Convention on Human Rights. In its short opinion, the Supreme Court relied on previous precedents from the European Court of Human Rights leaving the question of the so called ‘right to die’ for states to decide. As the decision was merely on the application for permission to appeal, the Claimant had to demonstrate only a ‘prospect of success’ upon a full hearing that would justify giving the permission. Nevertheless, the Court held “not without some reluctance […] that in this case those prospects are not sufficient to justify giving permission to appeal” (at para. 8).

Since the enactment of the Human Rights Act 1998, rendering the European Convention on Human Rights directly applicable in the United Kingdom, there have been several challenges to the Suicide Act 1961 as incompatible with the Convention. Most notably, in the case of Pretty v United Kingdom (2002) 35 EHRR 1, following a dismissal by the UK House of Lords, the European Court of Human Rights also ruled that Article 2 of the Convention could not be interpreted as containing any right to die. It was further held that although the ban on assisted suicide interfered with the right to private life under Article 8(1) of the Convention, it could be justified ‘for the protection of the rights of others’ under Article 8(2). 13 years later, a similar challenge was mounted in the case of Nicklinson v United Kingdom (2015) 61 EHRR SE7 but the European Court of Human Rights maintained its position from 2002 relying on a wide margin of appreciation states enjoyed on the question of assisted suicide. Interestingly, before the case reached the European Court of Human Rights, the UK Supreme Court (having succeeded the Appellate Committee of the House of Lords), had followed Pretty only 7-2, with Lady Hale and Lord Kerr dissenting. In her Dissenting Opinion, Lady Hale “reached the firm conclusion that [the] law [was] not compatible with the Convention rights […and…] little [was] to be gained, and much to be lost, by refraining from making a declaration of incompatibility.” (R (Nicklinson) v Ministry of Justice [2014] UKSC 38 at para. 300).

Paradoxically, Lady Hale and Lord Kerr, who were both willing to hold the ban on assisted suicide incompatible with the European Convention on Human Rights in 2014, constituted the majority of the Supreme Court panel (along with Lord Reed) refusing the permission to appeal in Conway. In fact, they were in the position to accept the case on behalf of the Court, even in the face of opposition of Lord Reed.

The Grand Chamber Vindicates Russian Opposition Leader Navalny (ECtHR)

On 15 November 2018, the Grand Chamber of the European Court of Human Rights ruled unanimously in the case of Navalny v Russia (App. no.: 29580/12) that the treatment of Russian opposition leader Alexei Navalny by the Russian government had violated his rights under:

  • Article 5 of the Convention (concerning arbitrary arrest on 7 occasions and pre-trial detention on 2 occasions);
  • Article 6 of the Convention (concerning 6 out of 7 administrative proceedings leading to his conviction of administrative offences);
  • Article 11 of the Convention (concerning the inability to peacefully assemble).

Furthermore, the Court also held 14-3 that there had been a breach of Article 18 considered in conjunction with Article 5 and Article 11 of the Convention. At the end, the Court ordered the Russian government to pay €50,000 in respect of non-pecuniary damage, €1,025 in respect of pecuniary damage and €12,653 in respect of costs and expenses, which adds up to €63,678 in total. The ruling comes after the Russian government appealed against the original judgment of the Third Section of the European Court of Human Rights. The Grand Chamber has now upheld the main bulk of the Third Section’s reasoning unanimously dismissing the Government’s objection:

  • of non-exhaustion of domestic remedies under Article 5 of the Convention;
  • of non-exhaustion of domestic remedies under Article 11 of the Convention;
  • as to the failure to comply with the six-months rule under Article 18 of the Convention.

Mr Navalny lodged a complaint against the Russian government in 2014 effectively claiming a political persecution through different methods and over an extensive period of time. In respect of Article 5, Navalny complained about having been arbitrarily arrested on 7 occasions while attending peaceful demonstrations, including twice for an alleged failure to obey a police order (on 9 May 2012 and 24 February 2014) and about having been detained for over 3 hours in violation of the statutory time-limit pending his trial (paras. 68-9). In respect of Article 6, Navalny argued that on all 7 occasions when he was arrested, he was unfairly convicted of an administrative offence in violation of his right to a fair hearing, including the right to the equality of arms, presumption of innocence, impartiality of the tribunal and the adversarial nature of the proceedings (para. 73). In respect of Article 11, Navalny claimed that arresting him 7 times while attending peaceful demonstrations had violated his freedom of peaceful assembly (para. 85).

Finally, in respect of Article 18 (stipulating that “the restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”), arguably the most interesting element of Mr Navalny’s claim, he:

“156. … submitted that since the 2011-2012 protest rallies in which he played a leading role, the authorities had become wary of his participation in any kind of informal gathering. They sought to punish him for his political criticism and took steps to discourage his supporters. He was specifically and personally targeted by the authorities who acted to suppress political dissent. He referred, in particular, to the footage of his arrest in front of the courthouse on 24 February 2014 (the sixth episode). He also alleged that he had been arrested even though the gatherings in question had been peaceful and had raised no public-order issues. The procedure set out by law for drawing up the administrative offence report had been manipulated so as to remove him from the event venue unnecessarily and to detain him without a lawful purpose. Whilst he had promoted the ideas and values of a democratic society … and as the most prominent opposition figure advocating these values, he had been harassed precisely because of his active engagement in political life and the influence that he had on the political views of the Russian people.

On that subject, the Court held that:

“168. … It cannot be overlooked that the arrests took place in the context of the applicant exercising his Convention right to freedom of assembly. The Court finds that a certain pattern may be discerned from the series of seven episodes. Moreover, the pretexts for the arrests were becoming progressively more implausible, whereas the degree of potential or actual disorder caused by the applicant diminished. It is also noteworthy that in the first four episodes the applicant was one of the leaders of the gatherings, and this could explain to a certain extent why he was among the first persons to be arrested. However, this was not the case in the subsequent episodes where the applicant did not play any special role.

169. In the fifth episode (on 27 October 2012) the applicant was one of some thirty activists taking part consecutively in a stationary demonstration. There were several prominent public figures among the participants and no obvious leadership. Moreover, according to the official version, the applicant was arrested not in connection with the demonstration itself but for holding a “march” when he was walking away from the venue followed by a group of people, including journalists. Nothing suggests that the applicant had arranged for these people to accompany him, or that he was somehow in charge of his followers or that he was in a position to control them in the very brief moments before his arrest (see paragraph 32 above).

170. An equally evident example was the sixth episode (on 24 February 2014) with his arrest in front of the courthouse, where he was merely one of the persons waiting to be allowed inside the building to attend the public hearing. The police deliberately divided the crowd to retrieve the applicant and remove him from the venue, although nothing in his conduct or appearance distinguished him from other peaceful individuals quietly waiting behind the police cordon. In this episode it is particularly difficult to dismiss the applicant’s allegation that he was specifically and personally targeted as a known activist, even in the most innocuous situation remotely resembling a public gathering (see paragraph 156 above).

171. In this context, the Court’s observation in Merabishvili to the effect that in a continuous situation the predominant purpose may vary over time (§ 308) assumes particular significance. It may well appear that the predominant purpose of the measures taken against the applicant has indeed changed over the period under examination. What might possibly have seemed a legitimate aim or purpose at the outset appears less plausible over time. Thus, as held in paragraphs 126 and 127 above, whereas the Court has serious doubts that any legitimate aim as claimed by the Government existed on the first four occasions, it has found that no such aim was present on the fifth and sixth occasions, and was again highly questionable on the seventh occasion. Also, as noted above, the violations in the present case occurred despite the authorities’ increasing awareness that the practices in question were incompatible with Convention standards (see paragraph 149 above). In this connection, the Court considers that regard should also be had to the wider context (ibid., § 317), notably to its similar findings in Navalnyy and Yashin (cited above) with regard to a demonstration three months before the first of the seven episodes in the present case. Equally relevant to the general context are its findings with regard to the sequence of events that unfolded in two sets of criminal proceedings which were being conducted against the applicant in parallel. In one case it found that the national courts had “omitted to address” and “had heightened … concerns that the real reason for the applicant’s prosecution and conviction had been a political one” (see Navalnyy and Ofitserov, cited above, §§ 116-19). In the other it held that the applicant’s criminal sentence was “arbitrary and manifestly unreasonable”, that the law was “extensively and unforeseeably construed” and applied in an arbitrary manner which flawed the proceedings “in such a fundamental way that it rendered other criminal procedure guarantees irrelevant” (see Navalnyye v. Russia, no. 101/15, §§ 83-84, 17 October 2017).

172. In addition, there is converging contextual evidence corroborating the view that the authorities were becoming increasingly severe in their response to the conduct of the applicant, in the light of his position as opposition leader, and of other political activists and, more generally, in their approach to public assemblies of a political nature. The Court has previously noted the important legislative changes which took place in the reference period, increasing and expanding liability for a breach of the procedure for conducting public events (see Lashmankin and Others, cited above, §§ 301-06). In particular, the maximum amount of the fine payable for such offences was increased by twenty times; new types of aggravated offences were introduced with correspondingly severe sanctions; and the limitation period for the offences in question was extended. Further restrictions of the legislative framework on freedom of assembly introduced in July 2014, including criminal liability for assembly-related offences, although falling outside the period under consideration, may be noted as a continuous trend…

173. Against this background, the applicant’s claim that his exercise of freedom of assembly has become a particular object for targeted suppression appears coherent within the broader context of the Russian authorities’ attempts at the material time to bring the opposition’s political activity under control. At this point, the Court considers it appropriate to have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, bearing in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (seeMerabishvili, cited above, § 307).

174. At the core of the applicant’s Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest, that is, in the name of a “higher freedom” referred to in the travaux préparatoires (see paragraph 51 above). The Court considers that the ulterior purpose thus defined would attain significant gravity.

175. In the light of all the above-mentioned elements, and in particular the sequence and pattern of the events in the present case (see paragraphs 167-68 above), viewed as a whole, the Court finds it established beyond reasonable doubt that the restrictions imposed on the applicant in the fifth and the sixth episodes pursued an ulterior purpose within the meaning of Article 18 of the Convention, namely to suppress that political pluralism which forms part of “effective political democracy” governed by “the rule of law”, both being concepts to which the Preamble to the Convention refers (see, mutatis mutandisŽdanoka v. Latvia [GC], no. 58278/00, § 98, ECHR 2006‑IV, and Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 147, ECHR 2016 (extracts)). As the Court has pointed out, notably in the context of Articles 10 and 11, pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids abuse of a dominant position (see, among other authorities, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44; Gorzelik and Others v. Poland [GC], no.44158/98, § 90, ECHR 2004‑I; Leyla Şahin, cited above, § 108; and Karácsony and Others, cited above, § 147).”

Interestingly, the issue of Article 18, unlike other issues in this case, divided the Grand Chamber. Accordingly, the ruling includes a Partly Concurring and Partly Dissenting Opinion of Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay in which the Judges argued that the abuse of the Convention rights perpetrated by the Russian government should have been dealt with on the basis of Article 17 (stipulating that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth or at their limitation to a greater extent than is provided for in the Convention“) rather than Article 18 of the Convention (para. 3). The Judges admit in their Joint Opinion that the Court could not have properly considered Article 17 since the complaint had originally been made under Article 18 (paras. 4-5) but they nevertheless decided to elaborate on this subject. Firstly, they claim that Article 17 is clearly applicable to abuses of Convention rights perpetrated by states, not only individuals or groups (paras. 6-19). However, the Judges recognise that such an application of Article 17 is extremely rare. Secondly, the Judges, while admitting that Article 17 and Article 18 have a similar scope of application, distinguish the two on the basis of the difference between an ‘abuse of power’ and a ‘misuse of power’ claiming that

“26. If misuse of power is also undoubtedly an abuse of power, the opposite is not necessarily true. There may be instances of abuse of power when the authorities in taking an individual decision do not, in fact, pursue an ulterior purpose. To use the paradigm of the theory of sets, Article 18 is a subset of Article 17. The concept of abuse of rights is broader than that of misuse of power, meaning that certain acts will be considered “abusive”, not because the purpose is unlawful, but because of the way in which the power was used.”

The Judges conclude:

“33. In light of the above, we are of the view that, if the case had been presented in those terms, an examination of the facts of the present case under Article 17 would have enabled the Court to assess whether the number of individual episodes addressed in the judgment, taken together, are evidence or isolated manifestations of a system that abusively seeks to limit, by legislative, administrative and/or judicial means, the democratic rights of the applicant in a way that substantially runs counter to the purpose and general spirit of the Convention and is aimed at unduly limiting those rights; and to do so without (a) having to adopt a narrow focus on the (administrative) authorities involved in the individual incident under consideration and (b) having to address the difficult issue of whether those authorities, in their response to each individual occasion on which the applicant sought to exercise his fundamental freedom of assembly, pursued an ulterior purpose.”

It seems that the Joint Opinion of Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay by no means was designed to limit the scope of liability on the part of the Russian government, as recognised in the Majority Opinion. To the contrary. Under the approach to Article 17 and Article 18 advocated in the Joint Opinion, the liability of the Russian government for a repeated pattern of abuse of power towards Mr Navalny would probably only deepen. In any event, the Joint Opinion in this case is a rather rare example of the Court, or at least a part of it, trying to clarify confusing rules of application of Articles which are rarely relied on by applicants and therefore not sufficiently explained in the Court’s jurisprudence.

Comparisons to Nazi outside Free Speech Protection (ECtHR)

On 18 October 2018, the European Court of Human Rights ruled in the case of Annen v. Germany (No. 6) (App. No.: 3779/11) that Article 10 of the European Convention on Human Rights did not protect statements comparing doctors conducting stem-cell research to Nazi experiments. The Claimant was originally convicted before a German court for the crime of ‘insult’ contrary to Article 185 of the German Criminal Code and the case was brought before the European Court of Human Rights on the grounds that the comparison had been made in the context of a larger public debate and was therefore covered by the freedom of speech.

The Claimant argued that the conviction constituted a disproportional interference under Article 10 of the Convention. The state on the other hand argued that the conviction was necessary for the purposes of the “protection of the reputation or rights of others”, which is an allowable exception to the Article 10 rights. Ultimately, the Court held that the conviction fell within the margin of appreciation granted to Germany. It was also emphasised that “regardless of the forcefulness of political struggles, it is legitimate to try to ensure a minimum degree of moderation and propriety and that a clear distinction must be made between criticism and insult.” (para. 24).

With this case, the European Court of Human Rights maintains its limited approach to the Article 10 protection whereby, unlike under the First Amendment to the US Constitution, the freedom of speech does not cover offensive statements, even if made on a topic of public importance (e.g. Handyside v UK (App. No.: 5493/72), Otto-Preminger-Institut v Austria (App. No.: 13470/87), Vejdeland v Sweden (App. No.: 1813/07), etc.).

UK Supreme Court Aligns with US Supreme Court on ‘Gay Cake’

On 10 October 2018, the UK Supreme Court unanimously ruled in the case of Lee v Ashers Baking Company Ltd (Northern Ireland) [2018] UKSC 49 that the business’s refusal to bake a cake with a message supporting gay marriage was completely lawful and not contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (made under the Northern Ireland Act 1974) or the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (made under the Equality Act 2006), as claimed by the Claimant. Writing for the Court, Lady Hale argued that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights” under the European Convention on Human Rights (Buscarini v San Marino (1999) 30 EHRR 208) and that “the freedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention” (RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38; [2013] 1 AC 152) [at 50-2]. However, Lady Hale expressly distinguished between refusing to serve a customer based on his or her sexual orientation and forcing a business owner to prepare a product promoting a message he or she profoundly disagreed with [at 55]. Consequently, the Court was cautious not to create the impression that the ruling was a free pass to discriminate against homosexual consumers. Ultimately, the Court was of the opinion that forcing Ashers Baking Company to supply the requested cake would be a disproportionate limitation on the exercise of their rights to free speech and religion under Articles 9 and 10 of the European Convention on Human Rights.

The decision of the UK Supreme Court comes not long after the US Supreme Court ruled in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018) that the decision of the Colorado Civil Rights Commission forcing a baker to supply a cake with an analogous message supporting gay marriage was unlawful. In June 2018, the Court held 7-2 (over the dissent of Justice Ginsburg and Justice Sotomayor) that in considering the case, the Commission had been guided by a prejudice towards religion and therefore its decision violated the First Amendment. The case was therefore decided on very narrow grounds and does not definitely resolve the question whether there is a right under the First Amendment to decline to provide a service on sincerely held religious grounds. Only Justice Thomas in his concurrent opinion argued that the Cakeshop owner was fully within his right to refuse to prepare a cake which would violate his religious beliefs. It seems that this question is bound to return to the US Supreme Court in the near future. In fact, shortly after the ruling, in August 2018, the Masterpiece Cakeshop owner sued the State of Colorado in a federal District Court claiming religious persecution involving another incident of a refusal of service, this time in relation to a cake with a transgender message (The Denver Post).

The issue of ‘gay cakes’ has become symbolic of a wider legal debate both in the United Kingdom and the United States on circumstances in which a business can refuse to serve a customer on the grounds of religious beliefs. The two recent judgments by the highest courts of both countries seem to tilt towards prioritising religious liberty over non-discrimination. It remains to be seen whether this will become a trend in both courts’ jurisprudence and to what degree their reasoning will overlap. Interestingly, in its ruling, the UK Supreme Court expressly relied on the approach taken by the US Supreme Court in its general First Amendment jurisprudence:

The respondent suggests that the jurisprudence in relation to “compelled speech” has been developed principally in the United States as a result of the First Amendment. There is indeed longstanding Supreme Court authority for the proposition that “the right to freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”: see Wooley v Maynard 430 US 705, 714, per Burger CJ, citing Board of Education v Barnette (1943) 319 US 624, 633-634. But in the light of Laramore and RT (Zimbabwe) , and the Strasbourg case law on which they are based, it cannot seriously be suggested that the same principles do not apply in the context of articles 9 and 10 of the Convention.” [at 53]

On other hand, and in somewhat usual manner, the Ashers Baking Company judgment of the UK Supreme Court contains a postscript where Lady Hale addresses the Masterpiece Cakeshop judgment of the US Supreme Court:

“After the hearing in this case, while this judgment was being prepared, the Supreme Court of the United States handed down judgment in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (unreported) 4 June 2018. The facts are not the same. A Christian baker refused to create a wedding cake for a gay couple because of his opposition to same sex marriage. There is nothing in the reported facts to suggest that the couple wanted a particular message or decoration on their cake. The Colorado Civil Rights Commission, upheld by the Colorado courts, held that the baker had violated the Colorado law prohibiting businesses which offered sales or services to the public from discrimination based on sexual orientation. The baker complained that this violated his First Amendment rights to freedom of speech and the free exercise of his religion… The majority recognised that businesses could not generally refuse to supply products and services for gay weddings; but they acknowledged that the baker saw creating a wedding cake as an expressive statement involving his First Amendment rights; and contrasted the treatment that he had received, which they perceived as hostile, from the favourable treatment given to three bakers who had refused to produce cakes with messages demeaning gay persons and gay marriages. Justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who wanted the cake. The other bakery cases had been clear examples of an objection to the message rather than an objection to the customer. In their view the objection in this case was to the customer and therefore a violation. Justices Kagan and Breyer, who voted with the majority on the lack of neutrality point, also accepted that the Commission could have based its reasoning on that distinction – the other bakers would have refused to make cakes with the demeaning messages for anyone, whereas this baker had refused to make this cake because it was a gay couple who wanted it. Justices Thomas and Alito, on the other hand, considered that to make a cake for a gay wedding was expressive in itself and thus compelling it required strict scrutiny. Justice Gorsuch would also not have distinguished between a cake with words and a cake without. The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.” [at 59-62]

In any event, the inherent conflict between religious rights and the ban on discrimination will inevitably prompt similar cases in both the United Kingdom and the United States within the foreseeable future.

Payment of Widowed Allowance to Spouses Only Violates Human Rights

At the end of August 2018, the UK Supreme Court ruled In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 that the current rules for the payment of Widowed Parent’s Allowance (WPA) violated Article 8 of the European Convention on Human Rights read in conjunction with Article 14. WPA is a contributory-based social benefit offered under s39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to widowed parents with dependent children whose spouse or civil partner has died. The Court ruled that the requirement of a formal marriage or civil partnership as a precondition for receiving WPA discriminated against couples who although had children together, never formalised their relationship.

The Court was however cautious to say that not every type of social benefit requiring a formal union is necessarily incompatible with the Convention. It was held that WPA could not be dependent on the prior existence of marriage or civil partnership because it was designed to benefit children who have lost one of their parents rather than to make any form of compensation to the surviving parent him or herself. Accordingly, to condition the payment of WPA on the existence of a formal union between parents is to effectively discriminate between the so called legitimate and illegitimate children – a policy which was declared unlawful by the European Court of Human Rights in the case of Marckx v Belgium (App. no.: 6833/74), back in 1979. It is on this basis that the Lady Hale, writing for the majority, attempted to distinguish the case of Shackell v United Kingdom (App. No.: 45851/99) where the European Court of Human Rights had held inadmissible complaints that the lack of a formal marriage should not deprive the surviving widow of an analogous benefit (paras. 25-28). The attempt was nevertheless not entirely convincing and Lord Mance in his Concurring Opinion (with which Lady Hale agreed) further elaborated on this point ultimately considering the reasoning in Shackell to be simply unsatisfactory (para. 49).

This approach of the majority however prompted Lorde Hodge to claim, in his Dissenting Opinion, that the majority was departing from a settled line of case law of the European Court of Human Rights which had recently been confirmed in the case of Burden v United Kingdom (App. no.: 13378/05). Moreover, Lord Hodge pointed out that although the WPA could be construed as designed to ultimately benefit children, it was nevertheless payable directly to the surviving spouse and depended heavily on his or her circumstances so that “if she remarries or enters into a civil partnership, so long as she cohabits with a partner of either gender, or if she dies, the WPA ceases to be payable” and “the sums payable to the Survivor are not related to the children’s needs or increased by reference to the number of children for whom she is responsible.” (paras. 76-78). At the end of the day, the UK Supreme Court under the presidency of Lady Hale again took an active approach to the protection guaranteed by the European Convention on Human Rights.

Civil Partnerships for Everyone

On 27 June 2018, the UK Supreme Court ruled unanimously, in the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary), that the unavailability of civil partnerships to heterosexual couples was incompatible with Article 14 of the European Convention on Human Rights read in conjunction with Article 8. The Civil Partnership Act 2004 was introduced by the Labour Government to offer some form of formalised unions to homosexual couples at the time when British society was not ready for ‘gay marriage.’ Since it was designed to introduce formal relationships akin to marriage, the Act expressly applied to same-sex couples only as heterosexual couples could enter into actual marriage instead. This rationale was justified so long as same-sex couples could not marry. But this changed with the introduction of the Marriage (Same Sex Couples) Act 2013. Since then, homosexual couples have been able to choose between civil partnership and actual marriage while heterosexual couples could only marry. This has been challenged as a form of direct discrimination based on sexual orientation contrary to Article 14 of the Convention as applied by virtue of Article 8. Now the UK Supreme Court held that the need to “wait and evaluate” before enacting any reform, an argument the Government put forward to justify the discrimination, does not, in this case, constitute a legitimate aim under the Convention as this is not an instance of a discrimination with a long tradition which is only gradually becoming unacceptable but rather a novel issue whose discriminatory nature was apparent as soon as it was introduced (paras. 42-43). At the end, the Court did not hesitate to issue a declaration of incompatibility explaining that absent any legitimate aim, deference to a parliamentary process is not justified (paras. 54-57). The ruling goes a step further than the hitherto jurisprudence of the European Court of Human Rights which held in 2013, in the case of Vallianatos v Greece (App. Nos.: 29381/09 and 32684/09), that the availability of civil partnerships to heterosexual couples only violated Article 14 of the Convention read in conjunction with Article 8 because homosexual couples were not in a ‘comparable situation’ as they could neither marry nor enter into civil unions while heterosexual couples could do both (paras. 78-79). The same, however, could not be said about the situation of heterosexual couples in the United Kingdom. Moreover, the European Court of Human Rights ruled, in April 2018, in the case of Ratzenbock and Seydl v Austria (App. No.: 28475/12), that the unavailability of civil partnerships to heterosexual couples did not violate the Convention given that they could enter into marriage while same-sex couples could not. The Court was of the opinion that “the institutions of marriage and the registered partnership are essentially complementary in Austrian law.” (para. 40) – the same state of affairs one could observed in the UK between 2004 and 2013 but not since then. Accordingly, the judgment of the UK Supreme Court appears to have been built on the existing jurisprudence of the European Court of Human Rights while shrinking any deference to the legislature within the presumed margin of appreciation. Now it is only a matter of time before Parliament amended the Civil Partnership Act to remedy the injustice.

The European Court of Human Rights Continues to Exercise Jurisdiction over Tax Rates

On 24 July 2018, the European Court of Human Rights found, in the case of ZG v. Hungary (App. No.: 65858/13), that the state’s ‘severance tax’ of 98% violated the applicant’s right to the peaceful enjoyment of property under Article 1 of Protocol 1 of the Convention. This case marks the tenth time this year the Court adjudicated on the same issue with the same effect. The line of cases dates back to the summer of 2013 when, in the cases of  N.K.M. v. Hungary (App. No.: 66529/11) and R.Sz. v. Hungary (App. No.: 41838/11), the Court ruled that the 98% tax on severance payments for public employees did not strike a fair balance “between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (para. 49) – a requirement which the Court read into Section 1 of Article 1. This is despite the clear wording of Section 2 of the same Article stipulating that “the preceding provisions shall not, however, in any way impair the right of a State … to secure the payment of taxes or other contributions or penalties.” This line of cases is remarkable as nowhere else has the European Court of Human Rights held a tax incompatible with the Convention solely for the reason of its rate. Although the Court was also concerned with the fact that the tax was levied on the payment which was contractually guaranteed when the employee was undertaking the employment, this could be said about any new tax, as any new tax is necessarily levied, to a certain degree, on a state of affairs which has already been initiated. Furthermore, even though the Court indicated that in different circumstances such a high tax rate might be allowed, nevertheless, it seems that the European Court of Human Rights has, with this line of cases, brought taxation rates within the ambit of the Convention rendering them fully reviewable. This move widens considerably the protection of private property under the Convention, which, as originally enacted in Protocol 1, was rather weak. If a severance tax can be held incompatible with the Convention based on its high rate, there is nothing stopping the Court from holding any other type of taxation, including an income tax, to be equally incompatible. Of course the Court remains cautious in this respect granting Member States the highest level of margin of appreciation, nevertheless, by maintaining its ‘severance tax’ jurisprudence, it sends a strong message that extraordinarily high taxes levied with no apparent justification are not beyond the Court’s jurisdiction.

The End is Near for Strict Northern Irish Abortion Laws

Northern Ireland has one of the strictest abortion laws in Europe. It also differs from the rest of the United Kingdom where abortion is easily accessible under the Abortion Act 1967. But Northern Irish women can only access abortion where the mother’s life or health is in danger. This has recently been challenged by the Northern Ireland Human Rights Commission as incompatible with Article 8 and Article 3 of the European Convention on Human Rights. In 2015 the Commission won a surprising victory at the Northern Irish High Court ([2015] NIQB 96) where the Court held that Northern Irish law failed to strike a fair balance between the right of the mother to private life guaranteed by Article 8 of the Convention and the need to protect the life of the foetus, in cases of pregnancy resulting from sexual crimes (prior to the point of viability) and foetus deformity (throughout the pregnancy). But this ruling was subsequently overruled by the Northern Irish Court of Appeal ([2017] NICA 42). Finally, on 7 June 2018, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), the UK Supreme Court ruled 4-3 that the Commission had no legal standing to bring the case in the first place and therefore the original ruling was void. However, at the same time, and somewhat unusual, it was held that had there been jurisdiction, the Court would have found the current Northern Irish abortion law incompatible with Article 8 of the Convention in cases of rape and incest (4-3 vote) and fatal foetal abnormality (5-2 vote).

This line of cases dating back to 2015 is extraordinary for at least three reasons. Firstly, the European Court of Human Rights has never found that strict abortion laws comparable to Northern Irish statutes, as a matter of substance, violate any Article of the European Convention on Human Rights, even when it was expressly invited to do so in A, B, C v Ireland (2011). For a domestic Court to find a violation of any Convention right in this situation is to curtail a wide margin of appreciation given to states by the European Court of Human Rights in relation to abortion regulations, at the expense of the legislature. Secondly, Northern Irish society is known to be extremely prone to social unrest and given how controversial the abortion debate is, the Courts have shown real courage by stepping into this debate so decisively. Thirdly, even though the case was ultimately thrown out on procedural grounds, the UK Supreme Court has sent a clear message that the Northern Irish abortion law must be liberalised as it considered it incompatible with the Convention. It is inconceivable that this unequivocal message could be ignored and as such, it is now a matter of time before Northern Irish abortion laws undergo a deep reform.