I wrote last about the nonsense from the Daily Mail’s columnist Max Hastings about the verdict of the European Court of Human Rights (ECHR) in connection with the application by three convicted murderers challenging the practice in England and Wales of imposing life sentences where there was no prospect of release. The so-called “whole life tariff” was determined by the Court to be in breach of the murderers’ human rights under the European Convention on Human Rights (“the Convention”).
This prompted various outpourings of rubbish from newspapers and politicians. Much of the comment was undoubtedly ill-informed, rather than being deliberately twisted to suit political purposes. Ignorance of the issues is slightly more excusable than deliberate misrepresentation of the decision.
The piece I quote in full below is (a) an example of a politician in the media talking nonsense and (b) almost certainly a deliberate misrepresentation. I say “almost certainly” as the writer in question, unlike every one of his predecessors for the last 300 years, has not got a legal training and therefore, being charitable, one must keep in mind the chance that he simply does not understand the verdict.
The man in question is Chris Grayling MP. He is Justice Minister and Lord Chancellor in the UK Government. Presumably he was appointed to be Lord Chancellor on the same basis that Health Secretaries do not need to know anything about medicine, Education Secretaries do not need to be teachers and Transport Ministers don’t need any knowledge of public transport.
On the other hand, it might seem sensible for the man in charge of the justice system in England and Wales to have some legal knowledge, but Prime Minister Cameron felt that was not an essential.
And so to Mr Grayling’s piece in the Daily Mail, which can be read in all its glory here. You can also see it in full below, with my comments in bold.
Often when I hear politicians speak or read what they have written, what comes to mind is Alan B’Stard from The New Statesman, Jim Hacker from Yes, Minister and the various assorted unfortunates who served as ministers in The Thick of It.
I can see Peter Capaldi’s Malcolm Tucker briefing Mr Grayling on how to respond to the decision. (And I know Malcolm Tucker was clearly NOT a Tory but allow me the licence.)
“Surely Malcolm”, says Mr Grayling “I should address the merits of the decision and the legal basis used by the judges, and deploy the arguments we put before the court which the judges did not accept?”
“No, you jolly well will not”, says Tucker. (I will avoid his traditional profanities.)
“Look at this you idiot. What you have here is the chance to point out (a) that some foreigners have told us, this great nation, and its people, that we are all wrong and (b) that they have made a decision which helps evil murderers. If we wanted to get a decision from Europe to suit the Conservative message that Johnny Foreigner is out to get us, we could not have written this better ourselves!
“So what I need you to do is to get a piece out there – I’ll try the Daily Mail – and you need to mention cases which have nothing to do with this application; Winston Churchill; the KGB torturing people; what these applicants did in the most disparaging terms possible and how the other parties are against the manifest common sense involved in getting rid of the European Court.
“And if you can imply, at the same time, that the European Court has something to do with the EU (even though it doesn’t) then that can help sink those UKIP fellows! OK Lord Chancellor – get typing!”
And so, I imagine, the following article appeared…
Yesterday’s judgment was a terrible one for British justice. As a result of a misguided ruling in Strasbourg, our judges cannot now tell the most brutal of murderers, such as Dale Cregan, the man who butchered two policewomen in Manchester, that they will never be let out of prison.
I will write about the legal basis of the decision in my next post (all things permitting) but, put very briefly, the ECHR did NOT decide that judges cannot tell criminals that they will never be released from prison. Instead they decided that it was a breach of the convict’s rights to be given no prospect at all of release, no matter what the person does. What the UK Government had failed to do was to have any meaningful system in place for review of the sentence after a suitable period. The law does provide that the Secretary of State can release a “whole life” prisoner; none have been freed since the change in the system in 2003. The ECHR considered that this was therefore not a “real” review and that the Government was at fault in not having a meaningful review process.
The case did not mention Mr Cregan. He was not a party to it. And any effect on him will not be for a considerable time. The Court indicated that the former procedure, which included a review of “whole life” tariffs after 25 years’ imprisonment, would have satisfied the duty to follow the Convention. Therefore Mr Cregan, for example, would not be eligible to have his continued imprisonment reviewed until 2038.
And why did Mr Grayling mention that Mr Cregan was convicted of murdering two police officers, as he was, but not that he killed two others? Was this because they are seen by Mr Grayling as less important?
As for a dreadful day for “British justice”?
TC Campbell …
The list of infamous miscarriages of justice in the British courts is long and dishonourable. I think each one of the above, on its own, constitutes a far more “dreadful” day for justice.
No matter how awful their offence, no matter the terrible damage they might have done, yesterday’s ruling from the European Court of Human Rights means that every offender who receives a whole life tariff must be given the right to a review of the sentence, keeping open the possibility of release.
Yes Mr Grayling. A right to seek a review of the sentence after having served 25 years, with no guarantee that they would be released at that stage. Instead it would be for the review body to consider all matters, including punishment, rehabilitation and danger to the public before authorising release of such a prisoner.
The point of the decision is that the blocking of any prospect of release was detrimental, over and above the requirements of punishment, to the convict. It was also counter-productive and likely not to be conducive to good order in prisons. After all, if a man knows he will never be released, what incentive is there to improve oneself and, even in the slightest way, to seek to make restitution for his crimes?
The problem is this isn’t the first time we’ve seen the tentacles of the ECHR creep all too far into areas which should be matters for national courts and national parliaments to deal with.
“Tentacles”? What a polite way to refer to the European Court!
The UK does not, by any means, have the worst record before the court. That itself shows that the Court has not used every one of the opportunities it has had to “interfere”.
But the Convention structure is meant to put a brake on some things that are done by domestic courts, parliaments and executives.
In addition Mr Grayling seems to be doing what unsuccessful parties to court actions, or in sporting events, have done since time immemorial – when you lose, blame the referees or judges.
It’s not even the second or third. It’s tried to set itself up as the Supreme Court of Europe, and it has overstepped the mark.
The phrase ‘human rights’, so important in so many parts of the world, is becoming more and more discredited here because the public, rightly, doesn’t understand why it’s been used as justification for paying rapists compensation for ‘frustration’ at a delay to their parole hearing or allowing terrorists to stay here despite their stated aim to harm this country and its citizens.
Maybe the Government could explain to the public what the implications of the Convention are for the people of the UK or how the work of the ECHR impinges on our lives? Maybe it could relate what changes, for good or ill, have come about as a result of the Convention (such as the abolition of corporal punishment in UK schools)? Maybe the Government could enlighten the public, rather than indulging in popularity seeking misrepresentations?
Yes, I know I am expecting the impossible…
As far as the cases referred to go, that of the convicted rapist can be read about here. But read shortly Mr Etteridge had unacceptable delays in the convening of a Parole Board hearing. He went to court where the Court accepted there were undue delays. A Parole hearing was then fixed, but cancelled. The Government then accepted that his rights had been breached. The ECHR decided that that recognition by the Government was not enough to “compensate” Mr Etteridge. So that case was one where the Government admitted it was in the wrong.
As far as the latter example goes, I assume it is a reference to Abu Qatada. Richard Norton-Taylor raised the question in the Guardian which has always troubled me regarding the cleric now finally deported to Jordan – why was he never prosecuted in England?
I suspect that, as Mr Norton-Taylor identified, there are quite a lot of offences which would be committed by someone who has as their “stated aim to harm this country and its citizens”.
In Scotland it could have been prosecuted as a breach of the peace, as well as all of the various statutory offences added to the books over recent years.
And Mr Qatada’s case before the ECHR was based upon the likely use of evidence obtained by torture. Does Mr Grayling believe that, despite that being the case, this country should still have handed him over? Clearly he and his Government did think so.
But why was he never prosecuted here? Maybe Mr Grayling or the Home Secretary could contribute an article explaining why the Crown Prosecution Service never pursued Mr Qatada in the criminal courts?
At the time when the original Human Rights Convention was written, in the late 1940s, innocent people were being carted off in the middle of the night to starve in the gulags or tortured to death in the bowels of Moscow’s Lubyanka prison.
It was brutality such as this that inspired Winston Churchill and other democratic leaders to come together and forge the European Convention on Human Rights.
So the Convention was solely a response to Communist Russia? Surely it was even more so an effort to unite states in an effort to prevent the evils of the Nazis, such as the Holocaust and the other abuses of the people of Europe before the Second World War?
And bizarrely Mr Grayling is referring to torture, which was applicable to Mr Qatada. Is his position that torture to gain evidence is ok, as long as it does not lead to death? (I am sure that is not his position, but the article he has contributed to the Mail lacks intellectual coherence).
In 2010 Lord McNally, then, as he still is, Minister of State at the Department of Justice, wrote:-
However, the European convention on human rights is part of our DNA. It is not “someone else’s law”. It was never imposed on Britain. The UK proposed the creation of the convention at the end of the Second World War – largely at the suggestion of Winston Churchill. It was designed to ensure that the atrocities and mass murder committed by totalitarian states before and during the war would never be repeated. The rights contained in the convention can be traced back to Magna Carta and to other laws long established in the UK.
I wonder if Mr Grayling and Lord McNally have debated their respective stances on the ECHR?
This set out the fundamental principles of a democratic nation at a time when there were all too few of them in Europe – the right to life, the right to a fair trial, the right not to be held in slavery, not to be tortured. I simply do not believe that the noble intentions of the writers of the original convention were ever intended to be used to give justification for paedophiles to challenge being placed on the sex offenders register, or give a convicted killer who slaughtered his family the reason to claim his whole-life tariff is ‘inhuman and degrading’. Or to take judgments that seem to completely forget the rights of the victims and their families.
The argument Mr Grayling touches on here is one which has been ongoing regarding the US constitution almost since it was promulgated. Should a fundamental piece of law be an “organic” or a static thing?
Should it only be used in line with the intentions of the framers of the document, taking no account of changes in technology, society or developing opinions? There are many things which were banned when the Convention came into force which are now permissible and many things which were acceptable then which are now no longer tolerated?
As regards this case, the decision of the Court does not “forget” the rights of families. They are taken account of, but it does not suit the Lord Chancellor to acknowledge that.
The ECHR also found, it should be noted, that the applicants’ rights had been breached. It is not the case that they made a spurious application, but a successful one!
Yesterday’s ruling underlines the need for urgent change. We need to curtail the role of the European Court of Human Rights in the UK.
The days when it could interfere with the settled wishes of the British Parliament and people must end.
Consequently, there will be no downgrading of human rights under the coalition.
One wonders how that statement can be reconciled with this week’s rant by his boss.
And is it only me who hears Jim Hacker talking of the “Euro-sausage” when reading Mr Grayling’s prose…
We need a proper balance between rights and responsibilities in our laws. You can’t be allowed to take away the rights of others, and then use your own rights to avoid facing the consequences. I would introduce such changes immediately.
Here again Mr Grayling seems to misrepresent the verdict of the court.
The court did NOT declare that it was a breach of the Convention to put someone in prison till they die.
The court did NOT declare that such prisoners should now be released.
The court did NOT declare that every such prisoner should be given the right to seek review now. In fact, only one of the three applicants has been in prison long enough to have such a review take place now, and of the 47 men and one woman serving “whole life tariffs” only seven have served enough for a 25 year review.
The court did not say that its decision was one allowing the convicts to “avoid facing the consequences.”
What changes is Mr Grayling wanting to bring in? Withdrawal of the UK from the Convention? I mentioned in my last blog quite what effect that might have, especially on European states which are less scrupulous on human rights than the UK.
But Labour and the Lib Dems will have none of it. They want things to stay as they are. This is mad. I don’t understand them. But they have more votes in Parliament and have said a clear ‘no’ to change.
And so the piece continues in a way which suits perfectly the politics of the day. Blame the “opposition” – even although one of the parties he mentions is actually in coalition with Mr Grayling’s party! His characterisation of a different view as “mad” could be seen as an effort to simplify the discussion, but probably is not.
So therefore the blame rests on Labour and the Lib Dems who have refused to countenance the unspecified changes Mr Grayling wants.
So we are working on alternative plans. All options are on the table. And we will go into the next general election with a clear promise in the Conservative manifesto of major change, together with a detailed plan of how we will deliver it.
For me, that change cannot come quickly enough.
And until the manifesto clearly we will not see what those changes are. As he says “all options are on the table”.
In a sensible and constructive political arena (ha ha) the Conservatives would put forward proposals in an effort to reach agreement. If the ECHR is such a dreadful threat to the sovereignty of the UK Parliament, then should it not be the Government’s duty to attempt something to protect us, even if this involved achieving less than the Tories want?
It seems such a blatant piece of politics that one wonders how one can take it seriously, yet people do.
So, we have a court decision being misrepresented by the Lord Chancellor.
We have him citing cases where in fact the details of the case do not support the argument he is trying to make.
We have his rallying call for action, without telling us what he would like to do.
We have him telling us that the other parties are refusing to countenance these unspecified changes.
We have him contradicting his junior Minister’s previous public statements.
Why am I surprised that a politician is behaving like a politician?
Posted by Paul McConville