Human Rights Day
Posted on 10th December 2015
On Human Rights Day 2015, Joanna Fleck reflects on a year that has seen the Human Rights Act under threat and looks back at how Hodge Jones & Allen have been able to use the Act to gain redress for victims of serious crime, bereaved families and innocent suspects over the year.
With a Conservative victory in this year’s General Election, 2015 has seen the Government pledging to scrap the Human Rights Act despite mounting opposition.
The debate about the Act is not new and has been going on for as long as the HRA has been in force, and even before that. Its detractors have long argued that the Act, which allows those in the UK to enforce their rights under the European Convention on Human Rights, should be scrapped and, possibly, replaced by a ‘British Bill of Rights’.
This proposal overlooks the history of the ECHR itself which was in fact drafted by British lawyers and ratified by the UK Parliament in 1951. In 2009, the late Lord Bingham gave the keynote speech at Liberty’s conference addressing these arguments, asking: “Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them un-British?”
Most recently, it has been argued that the Human Rights Act is being used to bring claims never envisaged by those early drafters. This argument focuses on a small minority of cases and overlooks the importance of the HRA in enabling important claims to be brought.
An examination of Hodge Jones & Allen’s successful Human Rights Act claims over the year makes it clear, that our human rights laws fill important gaps that our common law (which develops only slowly and cautiously in the courts) fails to fill.
Whilst the year has seen many high profile legal victories under the Act, here we look at some of the unpublicised cases that our team works on day-to-day that demonstrate the importance of the Act in protecting the rights of citizens.
Article 2 – Right to Life
Our team represents many bereaved families whose loved ones have died in police stations, prisons or immigration detention centres. The care and treatment of prisoners with health problems, including mental health issues, appears to be getting worse. Article 2 imposes a duty on the state to protect life (particularly the life of those in its own custody). This means that systems should be in place to monitor and help those whose life is at risk, whether that be for physical or mental health reasons, or from assaults by officers of the state, other prisoners or third parties.
HM Chief Inspector of Prisons’ report for 2014-2015 found the situation is deteriorating. There were in this period more murders, suicides, incidents of self-harm and serious assaults in prison compared to five years ago. The mortality rate in prison is significantly higher than that in the general population.
The Human Rights Act provides family members with a legally enforceable right to a proper investigation into the death of their loved one in state detention, as well as a claim in damages where there has been a breach.
We represent and continue to represent numerous families who want answers about why and how their relative has died in custody. In one recent inquest we represented the parents and siblings of the late Mr Z, who died in prison, first in the inquest and then in a successful claim under Article 2 for the breaches to his right to life by the prison.
The prison inreach mental health team failed to recognise that the deceased had a psychotic illness with the result that his medication was reduced and then stopped too quickly and without proper monitoring of the effects. His mental health deteriorated significantly; he became paranoid about prison staff and other prisoners attacking him or tampering with his food and started to self-harm in increasingly dangerous ways in order to get out of the prison, including swallowing batteries and making ligatures, and was eventually found hanging in his cell. His family visited him regularly in prison and he would call them often. They could see that he was deteriorating but were powerless to get help for him – his mother even phoned the prison a few weeks before his death and asked them to watch him because she was so concerned.
As the deceased was married, his wife could bring claims for his estate under statute. But his parents and siblings, who were equally devastated by the loss, could only claim as victims under the HRA; without the Act they would have had no legal remedy.
Article 3 – Prohibition of Torture and Inhuman or Degrading Treatment
This year saw important developments in the way the courts say the police must protect people’s rights under Article 3 of the European Convention on Human Rights.
It has long been accepted that the police have a duty to protect people from inhuman and degrading treatment, but this year the Court of Appeal held that they also have a freestanding investigative obligation; if someone reports a crime which arguably engages Article 3 (i.e. amounts to torture or inhuman or degrading treatment) then the police must conduct a prompt and effective investigation. They can be legally challenged if they do not.
In a Court of Appeal case, which was brought by victims of the black cab rapist John Worboys, it was found that the police had breached Article 3 because they should have identified and apprehended him before he went on to attack more women. They also breached victims’ rights by not carrying out a proper investigation even after they had identified him.
Our team represents several women who have been badly let down by the police including one young woman who was sexually assaulted by a serial attacker who the police could, and should, have apprehended many months before, having had his name and address as a suspect but failing for months to conduct basic DNA tests.
Several of our clients have reported rape or sexual assault but the police have disbelieved and discredited their accounts, either refusing to investigate at all or shutting down investigations prematurely, without proper investigation and without referring the case to the Crown Prosecution Service.
Crucially we have used these rights to successfully push for police forces to re-open criminal investigations into sexual assaults, and to get compensation for individuals who have suffered psychiatric injury as a result of preventable attacks and who have then been traumatised by the response by the police which has made them feel worthless, to blame for what had happened, disbelieved and unprotected.
Article 5 – Right to Liberty and Security
This year has seen the celebration of the 800th anniversary of the signing of the Magna Carta. As politicians and royalty celebrated with flotillas, speeches and conferences, human rights lawyers continued to fight for our present-day rights enshrined in the Human Rights Act, not least of which is the right to liberty.
While this right may be one of our oldest, the common law claim for false imprisonment, as it has evolved in England and Wales, does not provide an absolute protection or remedy for those unlawfully detained by the state. In some cases there is a claim under Article 5 where a case would be unarguable in false imprisonment.
Most notably this year, the courts have recognised that where the police or CPS failures have led to excessive delays in investigations or prosecutions, this may breach a person’s Article 5 rights if they are being held in prison awaiting trial, for instance where the police or CPS have actually had possession of evidence which would totally exonerate a suspect, or could very easily have obtained it, but have failed to do so. Such claims could not be brought in false imprisonment because the police and CPS are not responsible for the actual detention of the suspects.
Our team continues to represent many individuals who have been detained for days, weeks or months at a time while evidence which would exonerate them is not obtained or examined in an expedient way. The toll on an innocent prisoner, as well as their family, can be immeasurable: employment is lost, relationships suffer, reputations are irreparably tarnished and there can be long term mental health consequences. Often only Article 5 provides them with any remedy.
Article 8 – Right to respect for Private and Family Life
The right to a private and family life is perhaps the right that is most frequently criticised by politicians and the press. There are often stories of “undeserving” immigrants or criminals purportedly abusing this right in order to stay in the UK, or celebrities using Article 8 to claim huge sums in compensation for tabloids reporting on their private life.
However accurate such stories may or may not be (and some are without a doubt wilful distortions of the reality), in our team we see the fundamental importance of this right for ordinary people.
Several years ago, one of our clients Mr B was arrested on an allegation of assault by his neighbour. At the police station he answered all questions in the interview and explained he was acting in self-defence. After his solicitor had left, the police issued him with a caution. Not only should a caution not be given where a person has not accepted their guilt (Mr B has always maintained he was acting in self-defence and therefore guilty of no crime) but officers did not explain the impact of the caution and the effect on his future employment.
When some time later Mr B applied for a licence to be a taxi driver, it was refused because of the caution. Mr B successfully applied to have the caution removed from his record, because it had been administered unlawfully, and we successfully settled his claim for damage for the impact on his private and family life – including a claim for the loss of earnings while he was unable to work as a taxi driver.
We end 2015 uncertain as to the future of the Human Rights Act. Last week Justice Secretary Michael Gove admitted that the plans to scrap it were to be delayed again; this was a welcome respite but we remain in a state of uncertainty about what the proposals, when they are finally published, will comprise.
Victims of serious crime, bereaved families and innocent suspects are among the many who have relied on these rights this year, not just for financial compensation but to ensure the state carries out its duties towards them. In 2016, our Civil Liberties team will continue fighting for these clients, as well as fighting for the very existence of the Human Rights Act.
Keep following our blog for more updates on our cases and the campaign.