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Gary McKinnon: "Without people power, there's no way that Gary would have stayed here. The little person won."
“Gary McKinnon does not go abroad, ‘would rather be dead’, and does not go outside North London.” With these words, Janis Sharp explained the toll that this protracted decision had taken on Gary McKinnon.
Janis Sharp, Gary McKinnon’s mum, further thanked Theresa May in standing up against ‘a different nation’, ‘in having the strength’. Janis Sharp gave special tributes to Paul Dacre at the Daily Mail, and Michael Seamark and James Slack. ‘Without people power, there’s no way that Gary would have stayed here. The little person won.’ She described that ‘he had lost ten years of his youth, and ten years of his life.’ She suggested that individuals with Asperger’s syndrome tend to be very hard-working, and their talents should be nurtured and channeled.
Shami Chakrabarti, Director of Liberty (“The National Council for Civil Liberties”), said it was a great day for ‘compassion and common sense’. She looked forward to the day when the basic case could be demonstrated in a local court. She has praised Janis Sharp for uniting lawyers, media people, and politicians in her campaign, and emphasised the urgent importance of the Human Rights Act.
People with autism have particular vulnerability in the criminal justice system, according to Mark Lever. Expert opinion is sought to understand the basic processes, and Mark Lever, Chief Executive of the National Autistic Society, wished Gary McKinnon ‘good luck’ in the next chapter in his life. Lever explained that expert evidence, treatment and testimony were needed to ‘make sure people with Asperger’s syndrome were best supported.’
David Burrowes, his MP and who has been fighting an extensive prolonged campaign on Gary’s part, described it as an occasion when ‘compassion and doing the right thing’ prevailed, and urged that this should not happen again. The solicitor, Karen Todner, MD of Kaim Todner’s Solicitors, who has represented Gary for ten years called it a ‘rollercoaster’, with support from many, including the general public, medical and legal professions, MPs from all parties, and Daily Mail. She emphasised that Gary had a clinical diagnosis of clinical depression, and therefore this might be a factor which Keir Starmer might like to consider in pursuing a CPS prosecution in considering Gary’s “fitness to plead”.
Edward Fitzgerald QC has thanked the Secretary for State for a ‘brave’ decision, applying the test under article 3. Extradition must be refused if there is convincing and independent evidence of a high risk of suicide. Five neuropsychiatric experts had given such a judgment, and so she was ‘entitled and obliged’ to make this decision. Without the Human Rights Act, it would not have been possible to block the extradition.
Ben Cooper from Doughty Street Chambers described that he had made full admissions in 2002, and had the CPS had charged him this protracted case could have been avoided. Cooper felt that this showed an inconsistency in charging decisions made by the CPS, making reliance on articles 3 and 8.
Should young children be subject to passive smoking?
The question about whether young people should be subject to passive smoking (or “second hand smoke” (SHS)) soon resolves an issue of the rights of the child or the responsibilities of the parent. A person may wish to exert autonomy over their desire to have a cigarette, but does his or her child have an overriding right not to be subject of that smoke? As is usual with the law, the judgment crucially deciding upon conflicting interests, and balancing their decisions to make an apt decision. Ethicists have long wondered who exactly confers these rights, how are they defined and on what basis (Hall, 2005)
In fact, it is tempting to believe that UK health policy exists in a total vacuum, when it comes to the outside world. This is in fact not true, because the UK is a signatory to the United Nations Convention on the Rights of the Child (UNCRC). Although UN Conventions do not have ‘the force of law’, countries do report at regular intervals to the relevant UN Committee on their progress in implementation. From a legal point, it is noteworthy that the UNCRC does not have the same force as the Human Rights Act, although it is widely quoted in policy documents (Hagger, 2005). The concept of “rights’” cannot change human behaviour, but it “adds an element of accountability and a legal framework that can be used to make governments wake up to their obligations to make things happen’”. (Hall, 2005)
It is therefore nonetheless encouraging that one of that the UK’s leading lung charities seems to be very serious about children and lung health.
One of their election points, in relation to the British Lung Foundation’s “Children’s Charter”, argues the following:
The BLF therefore believes that parents and carers should be given opportunities to learn how to keep young lungs healthy and that children should have the right to enjoy a smoke free environment both inside and outside of the home.
In some ways, this is reminiscent of the NHS Patient Charter, which had its oft-exhausted list of inherent strengths and weaknesses. Christine Farrell has done a very considerabke review of the NHS Charter process (Farrell, 1999). The weaknesses of the Charter were seen by patients and staff as falling within three categories although staff were much more vocal in their criticisms than patients and carers. The problem areas were categorized into three groups:
1. problems with standards and rights;
(From this point of view, it is worth noting therefore the phrasing of “opportunities to learn how…” is not trivial, given the previous problems in how people understand standards and rights. NHS staff and patients have in the past commented on the lack of clarity and the confusion about what was a “standard’ and what was a “right”. This is an issue much discussed in the literature too (Hogg, 1994; Bynoe, 1996).)
2. difficulties with monitoring;
3. patient expectations raised too high.
Smoking, lung disease and policy
A very recent study has looked in fact at the relationship between childhood environmental tobacco smoke (ETS) exposure and the development of subsequent lung disease (Lovasi et al. 2010) Mechanical stress to alveolar walls, the little units which make up our lungs, may cause progressive damage after an early-life insult such as exposure to environmental tobacco smoke. Childhood ETS exposure was assessed retrospectively as a report of living with one or more regular indoor smokers. Childhood ETS exposure was associated with detectable differences on computed tomography scans of adult lungs of nonsmokers.
Indeed, young children who are exposed to tobacco smoke are in general significantly more likely to develop health problems during childhood and in later life. who are exposed to second-hand smoke (Health Care Commission (2006), ATS (1999). Although parental smoking is the commonest source of ETS exposure to children, children are also unfortunately exposed to ETS in schools, restaurants, public places and public transport vehicles.
Apart from containing thousands of chemicals, the particle size in the ETS is much smaller than the main stream smoke, and therefore has a greater penetrability in the airways of children. Exposure to ETS has been shown to be associated with increased prevalence of upper respiratory tract infections, wheeze, asthma and lower respiratory tract infections. Therefore, arguably, an increased awareness of the harmful effects of ETS on children’s health is warranted for formulating health policy overall (Cheraghi and Salvi, 2009). Furthermore, specifically, environmental tobacco smoke exposure carries a number of risks for the developing lung of the fetus, infant and child. (Wallace, 2009)
Despite the recent campaigns to eliminate smoking and hinder the detrimental effects of passive smoking , actual smoking rates still increase worldwide. Several physiological systems, with the respiratory being the primary, are disrupted by PS and progressively deteriorate through chronic exposures. This is of particular importance in children, given that respiratory complications during childhood can be transferred to adulthood, lead to significantly inferior health profiles. (Metsios, Flouris, and Koutedakis 2009).
SHS exposure is a known cause of disease among non-smokers, contributing to lung cancer, heart disease, and sudden infant death syndrome, as well as other diseases. Yet thousands of children remain unprotected from exposure to SHS in private homes and cars. New initiatives targeting SHS in these spaces have raised ethical questions about imposing constraints on private behaviours (Jarvis and Malone, 2008) In the countries where the smoke free legislation was successfully implemented (Ireland, Italy, Scotland) there is evidence of reduced prevalence of the smoking induced diseases, especially acute coronary attacks (Kemp, 2009).
Summary
One would, arguably, want to follow one’s intuitions and to see a society where children’s lungs are not damaged to the actions of their parents or adults generally. However, the whole issue brings up the added problems of whether second-hand smoke or passive smoking does without doubt cause lung problems (is science infallible?) and, as a country, whether we can do anything other than ‘encourage opportunities’ rather than to ‘enforce rights’. It is not an electoral issue, however, and nor is it likely to become one. It might become, on the other hand, a very campaigning issue for charities such as the British Lung Foundation and the British Heart Foundation.
References
Bynoe, I. (1996), Beyond the Citizen’s Charter. New Directions for Social Rights, Institute for Public Policy Research, London.
Cheraghi, M, Salvi, S. Environmental tobacco smoke (ETS) and respiratory health in children. Eur J Pediatr. 2009 Aug;168(8):897-905. Epub 2009 Mar 20.
Farrell, C. The Patient’s Charter: a tool for quality improvement? International Journal of Health Care Quality Assurance 12/4 [1999] 129-134
Guyer, B, Ma, S, Grason, H, Frick, KD, Perry, DF, Sharkey, A, McIntosh, J. Early childhood health promotion and its life course health consequences. Acad Pediatr. 2009 May-Jun;9(3):142-149.e1-71.
Hall, DMB. Children, rights, and responsibilities. Arch Dis Child 2005;90:171–173. doi: 10.1136/adc.2004.053017
Health Care Commission report, Clearing the Air 2006
Hogg, C. (1994), Working with Users: Beyond the Patient’s Charter, Health Rights, London.
Jarvis, JA, Malone, RE. Children’s secondhand smoke exposure in private homes and cars: an ethical analysis. Am J Public Health. 2008 Dec;98(12):2140-5. Epub 2008 Oct 15.
Kemp, FB. Smoke free policies in Europe. An overview. Pneumologia. 2009 Jul-Sep;58(3):155-8.
Lovasi, GS, Diez Doux AV, Hoffman, EA, Kawut, SM, Jacobs, DR Jnr., Barr, RG. Association of environmental tobacco smoke exposure in childhood with early emphysema in adulthood among nonsmokers: the MESA-lung study. Am J Epidemiol. 2010 Jan 1;171(1):54-62. Epub 2009 Nov 25.
Metselos, GS, Flouris, AD, Koutedakis, Y. Passive smoking, asthma and allergy in children. Inflamm Allergy Drug Targets. 2009 Dec;8(5):348-52.
The American Thoracic Society (1999) Pulmonary rehabilitation, American Journal of Respiratory and Critical Care Medicine
Wallace, J, The respiratory effects of tobacco smoke exposure on the fetus and child. S D Med. 2009;Spec No:11-2.
Scrapping the Human Rights Act might mean more petitions to Strasbourg – ALBA and the Bingham Centre at Inner Temple
Scrapping the Human Rights Act has become a incredibly hot potato with Theresa May’s recent announcement. Theresa May, a geography graduate from St Hugh’s College at Oxford, announced triumphantly, “We all know the stories about the Human Rights Act, the illegal immigrant who cannot be deported because – I am not making this up – he had a pet cat.” This unfortunately led David Allen Green, the leading legal blogger, to propose that, “The Home Secretary’s conference speech shows she does not know what her own department is doing”, in an article published yesterday on a blog for the New Statesman. As Allen Green himself provides, ” it has already been dealt with by respected critical sites such as Full Fact and Tabloid Watch.”
Reviewing the precise value of the Human Rights Act 1998 in the jurisprudence of England and Wales seems to be a worthwhile exercise, irrespective of it having turned into somewhat of a ‘political football‘. For example, parts of the Telegraph, latterly not particularly sympathetic towards David Cameron or Ken Clarke perhaps including Cristina Odone, have supported this ‘attack’ on the Human Rights Act, even proposing that Theresa May is a lioness who could find herself in Number 10. Such jurisprudence issues are extremely complicated, and leading commentators such as Joshua Rozenberg, Britain’s best known legal commentator according to very many, appear to advise that the debate must be conducted in a different light from the political grandstanding (article here). Rozenberg assessed the situation involving our Lord Chancellor as follows, “When Dominic Grieve, the attorney general, was asked at a fringe meeting for his reaction to May’s speech, he insisted he was “completely comfortable” with the idea of replacing the existing legislation with a British bill of rights.” However, Rozenberg says straight-up that there are legal cracks within the foundations of the Conservative part of the Tory-led government, “May is deliberately distancing herself from her coalition colleagues on human rights – including the justice secretary, Ken Clarke, a firm supporter of the Human Rights Act.” However, only a few weeks ago, the Daily Mail observed nervously that, “The Deputy Prime Minister won his loudest applause with an impassioned defence of the Human Rights Act – insisting it would never be scrapped while he was in government.”
It is within this context the open discussion at the Honourable Society of Inner Temple last night could not have come at a better time. The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. The speakers included Lord Justice Laws, Lord Pannick QC and Professor Philip Leach, London Metropolitan author, and author of numerous publications including the book “Taking a case to the European Court of Human Rights“. The session was totally packed out, and the speakers took many questions from leading practising international barristers and academics. It is easy to overstate the opposition towards the Human Rights Act, but it was pointed out only two countries are openly questioning the legitimacy of the European Convention of Human Rights – Russia and the United Kingdom.
LJ Laws has long been in favour of developing domestic jurisprudence in the context of the Human Rights Act and common law. John Laws felt that “the cases were beginning to speak, but the Convention was an useful guidance”, and reaffirmed the influence of a graduated approach to proportionality, an argument which Laws noted had been accepted by Bingham (see for example Regina v. Secretary of State For The Home Department, Ex Parte Daly). Laws reminded the legal audience that we, as a country, have always been in a position to influence Strasbourg, as for example the Pretty v United Kingdom case (a review of this is given here). Laws mooted, however, why should the judges be deciding upon social policy. Considering particularly articles 8-12, Laws provided that often lawyers had to decide where to strike the balance in certain issues between competing interest, but fundamentally lawyers were there to establish the framework and issue – however Laws warned that the nature of this exercise in jurisprudence gives rise ultimately to issue of a philosophical nature.
Lord Pannick charted the history of the reaction to our history right legislation, in relation to Strasbourg. Pannick reminded the audience that criticising the Human Rights Act, in relation to Europe, was not a recent phenomenon. In relation to the Gilbraltar incident, Michael Heseltine – as far back as 1995 – said, “We shall do nothing. We will pursue our right to fight terrorism to protect innocent people where we have jurisdiction, and we will not be swayed or deterred in any way by the ludicrous decisions of the Court.”
According to Lord Pannick, prisoners’ voting rights and the use of hearsay have also produced conflicting opinions from the UK and Strasbourg, and indeed these legal conflicts appear to be ongoing (see for example the present case of Zainab al-Khawaja, where the original argument was heard by the Court in 2010). Lord Pannick proposed that this conflict arose from various sources. Firstly, Lord Pannick felt there is a general resentment of European law amongst Conservative “elements”, and many of the population. Secondly, the objection to the European Convention of Human Rights could part of a wider objection to foreign law. Lord Pannick indeed reminded the audience that a Conservative MP, lawyer and judge, David Maxwell-Ffye, was instrumental in drafting the European Convention of Human Rights. Lord Pannick then identified a possible perception from the UK voting public, that judges should not be deciding on social policy: for example, the argument for prisoner voting is not a matter for judges, but should be a matter for parliament. Fourthly, the European system does not appear to be working well operationally – the strain of its backlog affects the time that can be devoted to cases. Lord Pannick felt that the setting up of the Joint Commission of Human Rights had been a welcome step, particularly for the screening of appropriate human rights cases and appointment of suitably-qualified judges. With the chairmanship of the Council of Europe only meant to last six months, Lord Pannick felt that there was limited damage which could in fact be inflicted by the UK on the jurisprudence of the rest of Europe.
Lord Pannick did not feel fundamentally that the criticisms of the HRA amounted to much. For example, the HRA expressly recognises that the UK Parliament is not bound by the Convention. If Parliament wishes to exclude voting by prisoners, the Human Rights Act does not prevent this. The judges can decide whether the defendants comply, but, according to Lord Pannick, it is equally important that the last word lies with parliament. Lord Pannick instead felt that a much more difficult issue is the relationship between parliament and the Strasbourg Court. Theresa May even if she repealed the HRA would still leave the jurisdiction of the Strasbourg Court intact – our own judges have no effect on the jurisprudence. If the 1998 Act were to be repealed, as parliament is overeign, the number of British cases to Strasbourg would increase according to Lord Pannick. Lord Pannick felt that an useful to look at the relationship between our Supreme Court and Strasbourg would be to look at the ‘control of its docket‘ jurisprudence, in other jurisdictions of international law.
Lord Pannick ultimately felt that the power of our parliament to define power Strasbourg as a body is limited. It would be unprecedented for us to withdraw from the European Convention of Human Rights, incompatible with membership of the EU, or Council of Europe. According to Lord Pannick, the concept of European minimum standards is of vital importance to us. There may be be occasions when national or international considerations are that our judges do not originally recognise that human rights are being breached (e.g. gays in the military) It would be difficult for us to expect that other countries such as Russia should comply with the Convention, if we do not. Lord Pannick therefore felt that the situation now required an accommodation on both sides. The Strasbourg is supposed to overrule a National court only in cases of fundamental significance, where the national supreme court has made an error of principle. If Strasbourg does not follow this principle, it may risk the growth of political opposition. However, likewise, Lord Pannick identified that the Supreme Court should not supinely follow Strasbourg, either. The Government for example accepted the DNA ruling in preference ot the House of Lords. If the Supreme Court were to be asked if the voting rule asked about the prisoners’ voting again, Lord Pannick felt that the Supreme Court would be unlikely to say it is compatible with the European Convention of Human Rights.
Professor Leach discusses in some detail the impact of the Greens, Hirst and Scoppola cases (please keep an eye on the blogs from @carlgardner and @adamwagner1). Professor Leach emphasised Lord Hoffman’s observation that “human rights are universal in abstraction but national in application” , made in his seminal speech entitled, “The Universality of Human Rights” as the Judicial Studies Board Annual Lecture on 19 March 2009. This was described in the Solicitors Journal on 7 April 2009 as follows,
Lord Hoffmann, one of the most senior law lords, has launched an extraordinary all-out attack on the European Court of Human Rights.
Giving the annual lecture at the Judicial Studies Board, he accused the Strasbourg court of trivialising and discrediting human rights, directly criticised its president, Judge Jean-Paul Costa, and warned that its four-year backlog of cases is growing.
No journalists were present when the speech was made last month, but it was published later on the JSB’s website, a step which could not have been taken without the law lord’s blessing (see: The Universality of Human Rights).
The discussion from the panel and the members of the audience was very thought-provoking, but it was a constructive one representing the genuinely diverse opinions in the community of the Barristers.
Extradition – testing the value of human rights
The Conservatives don’t like the Human Rights Act; the Liberal Democrats like it. Now they are in coalition, and have somehow formulated a position on control orders. Extradition is much more difficult, from the point of view of the legislature. The law of extradition from England and Wales was made less complex by the Extradition Act [2003] which was a response to the raised terrorist threat in Europe. Extradition was made much easier.
The judiciary provides relative certainty in this world of uncertainty. The decision by the European Court of Human Rights to block the extradition of Abu Hamza, the radical Muslim cleric, to America to stand trial on alleged terrorist offences poses a challenge to the Coalition government. The Conservatives promised to repeal the Human Rights Act – but that would make no difference because the European Convention on Human Rights would still apply to British law and it is on this that the Strasbourg court relies for its judgments.
It is an absolute prohibition for a signatory to the ECHR to remove anyone to a place where they would be subject to inhumane or degrading treatment. Article 3 of the European Convention on Human Rights prohibits “inhuman or degrading punishment”. The article has a long history, expressly evoking the 1688 Bill of Rights, which prohibits “cruell and unusuall punishments”. Unlike other rights, Article 3 is unqualified, which means that a State is not permitted to justify a breach on any grounds. It is now uncontroversial (in the courts, at least) that to return a person to a country where there is a real risk that they will be in danger or torture, loss of life or inhuman or degrading treatment would breach Article 3. Therefore, the courts have no choice but to prevent any extradition or deportation which would put a person at serious risk.
Gary McKinnon has been accused of hacking to various U.S. computers. Gary McKinnon’s legal battle has included a number of appeals to the Administrative Division of the High Court. In July 2009, Lord Justice Burnton rejected his claim that, due to his mental condition, his detention would involve inhuman or degrading treatment or punishment which would, if committed in this country, infringe Article 3. The judge held that the bar for inhuman and degrading treatment had been set high in previous cases, and stated that McKinnon also claimed under Article 8, the right to private and family life, but this was also rejected, as his extradition was found to be a lawful and proportionate response to his alleged offending. Unlike Article 3, Article 8 is a qualified right, which means that it can be overrided if there is a strong public interest in doing so.
The case has now been adjourned by the Home Secretary so she can consider the medical evidence afresh. Geoffrey Robertson QC calls this a test case for principles and suggests that the Home Secretary’s “main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother” However, the legislature – or rather an important part of it – has meant this story has taken, for the time-being, a turn for the worse. Nick Clegg, last week, said it would be ‘better all round’ for the two not to discuss the details of the case, which has now been grinding on for seven years. The Americans are demanding the extradition of Gary, 45, despite medical experts warning he will kill himself if sent to the U.S. for trial. Mr Clegg had been implacable in his support for Gary in opposition. He stood by Mrs Sharp’s side at a demonstration outside the Home Office in December 2009.
What we do not have is clarity on the future of the Human Rights Act. Mr Ken Clarke, the Justice Secretary, said Britain would seek to kick-start reform of the European Convention on Human Rights (ECHR) and the European Court on Human Rights when it takes up a key role in Europe later this year. However, Lord Justice Woolf has signalled there is very little chance of anything changing because it would mean persuading 47 countries who are all signed up to the Convention. The Prime Minister has announced a commission to examine the creation of a British Bill of Rights and the country’s relationship with the European court. Lord Woolf, who was the country’s most senior judge between 2000 and 2005, said a Bill of Rights would also cause conflict between the two.
The upshot for David Cameron and Nick Clegg – talk is cheap, when the future of human rights in individual people are at stake.
The Human Rights and the new coalition
It’s struck me as an academic lawyer that having Ken Clarke QC MP as the Lord Chancellor is very good for English law. He is well known to be an Europhile, so I am heartened by the fact he is most likely to preserve our legal position as a signatory of the European Convention of Human Rights. Indeed, as he says, scrapping the Human Rights Act would be ‘xenophobic, legal nonsense.”
