Courting Controversy: Clashes Compound Between Britain and Human Rights Bench

Nearly 500 miles of European land mass fell away, the English Channel hollowed out, the great earth shifted and the continent merged with the island to its west.  When all came to rest, the medieval cityscape of Strasbourg, France, sat atop London…  No, certainly not.  But for many a Europe-weary Briton, it felt as such over recent weeks.  The source of such consternation is the Strasbourg-based European Court of Human Rights (ECHR).  Superficially, it seems an unlikely target for mass upset.  But not so far beneath the skin, a battery of cases pulling the public’s attention toward the influence of the court has tapped into the recurring tension between British identity and Europe’s domestic presence.  As a heated deportation battle found a quiet end, residual bitterness over its handling fueled displeasure over rulings on prison terms and law enforcement inquests.

The Qatada Question, Answered

In early May, I wrote on this blog about Britain’s grinding efforts to expel radical Jordanian cleric, Abu Qatada.  Labeled a spiritual guide for Al Qaeda in Europe, the Islamist preacher used U.K. human rights protections to move out of reach of his home state’s judicial arm and further still to guard himself against legal moves to eject him from his chosen safe haven.  Having vastly overstayed his welcome, he pressed Britain’s interest in adhering to the European Convention on Human Rights (referred to as “the Convention” hereafter), the treaty bearing the court under discussion here.  The ECHR went for rounds with the British government over the question of Qatada’s status following a conviction in absentia on terrorism charges in Jordan, placing stays on deportation over questions of fair trial.  Eight years in, his back-and-forth wrangling inadvertently facilitated a groundswell of dialogue on leaving the court or the Convention altogether.

Ironically, Qatada’s most contemporary motion to avoid deportation was declined by the ECHR and it actually fell on the British Court of Appeal to refuse his ousting given suspicions of torture in the collection of evidence against him.  The final blockade may have been dropped in place by a domestic court, but that detail drowned in the ensuing clamor of voices against Europe’s interference in Britain’s legal processes.  Strasbourg was blamed for protracting the removal of a suspected terrorist in their midst, awarding compensation for time spent in detention without charge instead.

In that earlier post, I argued against threats to temporarily suspend Britain’s inclusion in the Convention and in favor of smarter thinking on questions of prosecution or release as deportation options shriveled and the state’s distance from War on Terror legal traps like Guantánamo Bay shrank.  Shortly after the publication of that post, Qatada agreed to leave voluntarily if the British and Jordanian parliaments ratified a treaty ensuring fair trial upon return – a request fulfilled with little delay.  On the evening of his leave, Qatada released a statement expressing hope that the Jordanian court would grant a bail application.

In the dead of night on Sunday, 7 July, Qatada boarded a private jet destined for Amman.  Shrouded in darkness and a cluster of protection officers, the controversial preacher left without the dramatics so commonly associated with his efforts to remain in-country.

Life Means Life, but Not Quite

Two days later, the ECHR released a judgment classifying UK life-term prison sentences without the possibility of review for future release as inhumane under Article III of the Convention.  The court heard the cases of three unconnected convicted murderers — Jeremy Bamber, Peter Moore and Douglas Vinter — who objected to the impossibility of review and release from their original trials.  The ruling currently impacts a rather small population of inmates — 49 in total — but the measure wouldn’t be limited to these cases in the future.

Judging by reaction in Britain, the ECHR bench might as well have shuffled up to the Old Bailey in London and cracked its gavel against Lady Justice herself.  Prime Minister David Cameron, Home Secretary Theresa May — fresh off the heels of her Qatada victory — and a number of MPs vocalized dismay at the ruling and newspapers went alight with editorials on the reach of the court and potential avenues for jurisdictional escape. In truth, the ruling doesn’t constitute a massive deviation from past practices: until 2003, a life sentence meant twenty-five years incarceration in the U.K.  Such a development would make for unpopular headlines if the change came out of home courts, no doubt, but one wonders if the response would be so vitriolic if you remove the external pressures.

The ruling reopens a discussion about what say Europe should have in how Britain defines the purposes of imprisonment.  In the absence of capital punishment (banned in the U.K. since 1965), a life term without parole is the fiercest of penalties available in the prosecution of violent crime. Its finality is not only intended as a deterrent but to preserve the safety of wider society.  Detractors argue claims of “inhumanity” should be aimed at placing hypersensitivity to the rights of prisoners over the life-degrading acts inflicted on their victims and the future protection of others.

Review does not mean release, however.  Bamber, Moore and Vinter should not be holding their breaths about watching prison doors pull away and stepping out into the world anew anytime soon.  It’s almost certain that that day will never come.  The ruling merely adds their file to the stack of others qualified for potential release, but a review panel can still deny an appeal based on the perceived level of continued threat posed by the applicant.  It is very much in doubt that any of those currently holding lifetime sentences will witness a change in their status.  The judgment only allows them continued attempts; attempts often funded by the taxpayer.

It’s hardly a surprising ruling.  Of the Convention signatories who are also members of the European Union (which are autonomous from one another), only Britain and Holland remain(ed) outliers in their use of immutable lifetime prison sentences.  But Cameron doesn’t see it as a case of “as goes Europe, so goes Britain.”  When the court denied Qatada’s expulsion last year, the prime minister moved to limit its ability to interfere in cases already decided by domestic courts.  His court reform campaign took on a wider scope, pressing for overhauls that would only allow judges to hear cases framed by gross violations of human rights and act only as an “advisory” body with non-binding legal authority for smaller cases.  The effort failed.  Dismissed, in fact, by the court’s British lead judge, who stood on the floor of the House of Commons defending the court’s conduct on British cases and against hugely disruptive changes in its structure that could lead to “friction and divisiveness.”  Such action, he argued, would flood the court with requests for advisory opinions by many or all of the other member states, overloading the court and thereby limiting its capacity to hear larger cases.

It’s an argument with a familiar converse ring to it for the U.K.  A year earlier, the ECHR struck down Britain’s blanket ban on electoral voting by prisoners.  The court did offer the olive branch of allowing the government room to choose which convicts qualified for enfranchisement, but the ruling met criticism for broadening the definition of basic human rights to include societal privileges.  The government has so far stalled in its implementation — a delay chastised by the Council of Europe — and claims the ruling opened the door for two cases brought by convicted murderers looking for vote inclusion and calls to allow Scottish inmates a say in an independence referendum for a U.K. breakaway.

The Troubles Find it Again

In combination, it all proved terrible timing for a ECHR reprimand this week for Britain’s efforts (or perceived lack thereof) in investigating the deaths of two Irish Republican Army (IRA) members at a munitions hideaway in 1990. The deceased, Martin McCaughey and Desmond Drew, were carrying AK-47s when they were shot by the SAS, but hadn’t fired their weapons.  Speculation followed that law enforcement officers were operating on shoot-to-kill orders.  According to the court, delays in the course of the investigation constituted a violation of their right to life under Article II of the Convention, requiring the investigation of suspicious deaths.  Yet another domestic lead balloon.

As ever in the relationship between politics and law, it can be difficult to identify the bad guy in an argument where everyone’s hands are tied.  British leadership is answerable to a constituency offended by the notion of a far off court passing judgment on affairs already addressed by an extensive and capable domestic judicial system.  The ECHR’s mandate to interpret a sixty-three year old treaty finds itself pressed against the evolving legal norms of nearly four-dozen member states.  In leaving, Britain would risk a serious bruise to its global human rights platform.  In reforming, the court would acknowledge either by implication or admission that its processes have eroded through its parameters.

It would be too easy to say that both sides need to find compromise amid their splinters, but neither is in a position to offer the other concessions – particularly the court, which needs to project an image of uniformity and impartiality toward all parties.  The sometimes unpleasant, and largely necessary, truth about human rights law is its protection of those accused and guilty of atrocity as much as those who are victim to it. But threats of departure can only be made so many times before such action needs to move forward or someone calls a bluff.  It seems only fitting, then, that the original translation for “Strasbourg” means “town at the crossing of roads.”