Tag: right

Trial with no Jury Upheld (UKSC)

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).

Assisted Suicide Remains Unlawful (UKSC)

On 27 November 2018, the UK Supreme Court refused, in the case of R (on the application of Conway) Secretary of State for Justice [2018] UKSC B1, 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.

Russian Opposition Leader Navalny Vindicated (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.