Tuesday, 10 February 2015

Bending Over Backwards for Britain?

I'm no lawyer but it looks to me as if the European Court of Human Rights is continuing a charm offensive with the UK. Yes it found today that the rights of more than a thousand British prisoners were breached when they were prevented from voting in various elections between 2009 and 2011; how could it find otherwise when the blanket ban on prisoner voting first found unlawful in 2005 is still in place? But the decision not to award compensation or even costs to the applicants shows the Court is all too aware of the obstacles that stand in the way of compliance and the likely media nd political  reaction to prisoners receiving pay-outs ordered by Strasbourg.  Understandable perhaps but how far backwards should the Court bend in trying to placate the UK ?   

Back in 2012, the Court found that that the likely detention conditions to be faced by five alleged terrorists (including Abu Hamza) after extradition to Colorado’s ADX Florence Supermax prison would not amount to ill-treatment. This was despite it being described by a former warden as “a clean version of hell” and where prisoners are confined to their cells for the vast majority of the time, apart from ten hours a week in an individualised recreation area. Such were the  contortions required by the Court to rule in favour of the UK, it found itself supporting its finding that opportunities for interaction between inmates at ADX were adequate in these absurd terms.. "While inmates are in their cells, talking to other inmates is possible, admittedly only through the ventilation system". I argued then that the ruling gave a seal of approval to an approach to imprisonment fundamentally at odds with human rights and civilised values.

Similar legal gymnastics were on display in the European Court's recent finding that the UK’s extremely restrictive arrangements for reviewing the sentences of prisoners given whole life tariffs provided  hope and the possibility of release. Admittedly the European Judges were able to pray in aid a ruling to that effect from the UK Court of Appeal which they thought provided necessary and sufficient clarity about the domestic legal position . They swallowed whole the  Court of Appeal’s argument that the (very) exceptional circumstances hitherto required for release  were no longer so limited but that “it is not necessary to specify what such circumstances are or specify criteria. The term ‘exceptional circumstances’ is apparently "of itself sufficiently certain”.

At the time of the Abu Hamza ruling, human rights lawyer Lord Lester called it wise and sensible, hoping perhaps that it would go some way to meet growing criticism of the court as a criminals’ charter and demands that the UK withdraw from its jurisdiction. Like the rulings that have followed, it could equally be described as craven and calculating, doing little credit to a Court too ready to sacrifice the principles it is established to uphold. 

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