International Law and the UNSCs Condemnation of ISIL

Craig Barker
Craig Barker

On 20 November 2015, the United Nations Security Council unanimously passed Resolution 2249 (2015) “unequivocally” condemning the spate of recent “horrifying” ISIL terrorist attacks across the world, including the most recent attacks in Paris. The unanimity expressed was unusual in the context of military operations; previous draft resolutions aimed at military intervention in Syria have been vetoed by Russia and China. However, in the context of responses to global terrorism, the unanimity was less surprising.

What is particularly welcome in this Resolution is the explicit reference to the need for States to comply with international law, “in particular, with the United Nations Charter, as well as human rights, refugee and humanitarian law”. Nevertheless, the Resolution is not an explicit authorisation of the use of force under Chapter VII of the United Nations Charter, leaving the authority to use military force a little unclear. The express wording of the Resolution “Calls upon Member States that have the capacity to do so to take all necessary measures in compliance with international law … on the territory under the control of ISIL … in Syria and Iraq”.

As is always the case with resolutions of this type, the language is deliberately obscure and open to interpretation. On the one hand, the lack of reference to Chapter VII of the Charter, which provides authority to the UNSC specifically to authorise the use of force, suggests that the measures used should not involve the use of force. However, this is not explicitly stated in the Resolution. Furthermore, the explicit reference to the requirement for action to be in accordance with international law further suggests that force should not be used.

On the other hand, it seems that since the UNSC passed Resolution 678 in 1990, which authorised the use of force to remove Iraqi forces from Kuwait in 1990, the words “all necessary means / measures” have been treated as code for the authorisation of the use of force, although Resolution 678 was passed as a Chapter VII measure. Additionally, it is apparent that a number of States, including the US and France, as well as Russia, have been carrying out bombing attacks against targets in Syria and the Resolution does not condemn such attacks.

 

Accordingly, the deliberately obscure language used in Resolution 2249 allows all states, and in particular, the five permanent members, to decide how each wishes to interpret the wording of the Resolution and construct a legal justification for or against the use of force. It remains to be seen how the United Kingdom will interpret the effect of the Resolution, but it is likely that the government will use the Resolution to push for another vote in the House of Commons in pursuit of Parliamentary authority to use force against ISIL. Nevertheless, it is the obscurity of the precise language used in the resolution that makes reference to human rights, refugee and humanitarian law so important and welcome. Ultimately it lays down a challenge to all those involved in the military action against ISIL to act responsibly.

 

The notion of responsibility is an important concept in international law both in terms of historic liability; that is, being responsible for a past breach of the law; and in terms of the allocation of future responsibility. To some extent, international law may be understood as a mechanism for the allocation of responsibilities in the international sphere. The link between the concept of responsibility and the role of the United Nations in maintaining peace and security is apparent in the so-called Responsibility to Protect doctrine (R2P). R2P provides a framework for UN Executive Authority to intervene in states to prevent genocide, war crimes, crimes against humanity and ethnic cleansing. It envisages a staged process of intervention that seeks to resolve conflict without military intervention but it is one that provides for the possibility of military intervention as a final step where all other measures aimed at bringing about a peaceful resolution have failed.

 

The fundamental responsibility envisaged by R2P lies with the territorial state, whose sovereignty is said to be conditional on ensuring the protection of its citizens. Thus sovereignty is itself understood as responsibility. Where the territorial state is unwilling or unable to fulfil its primary responsibility, the doctrine envisages, and provides for, the residual responsibility of the international community which, in practice, is best understood as UN Executive Action.

 

The R2P doctrine is controversial and to some extent unproven. For example, it failed to prevent the civil unrest in Syria which lead initially to civil war and ultimately to the present situation where ISIL controls large parts of Syrian territory. Similarly UNSC authorised action in Libya in 2013 arguably left citizens of that country more open to mass atrocity than they were before the intervention. However, in both cases, the UN and the states that led the intervention appeared to be impatient of and unwilling to wait for diplomatic efforts to bear fruit and saw military intervention as anything but a last resort.

 

R2P is triggered by the potential for genocide, crimes against humanity, war crimes and ethnic cleansing. Lawyers will argue about whether terrorism can be included in any of these categories. However, even without that determination, the repeated allegations of mass beheadings in ISIL-controlled areas, as well as attacks against Yazidi Christians and other Christian groups would undoubtedly be sufficient to trigger an R2P response. However, given the nature of ISIL and the apparent impossibility of engaging with it diplomatically, it would seem that the only R2P response is a military one.

For many, the thought of a military response against ISIL is unacceptable given the inevitable further suffering that would ensue. Perhaps that suffering can be justified in terms of avoiding the potential greater suffering for many others were ISIL not eradicated. If military force is used, the application of human rights, refugee and humanitarian law will go some way to minimise further suffering but it will not eradicate it.

UNSC Resolution 2249 is obscure and open to interpretation but perhaps that was necessary in order to achieve unanimity. Its reference to the importance of complying with international law is welcome. It arguably provides the best that is achievable in terms of legal clarity for intervention against ISIL, including military intervention. The question is now a strategic one that governments and the UN will have to consider in the coming days, weeks and months.

Professor J. Craig Barker is Professor of International Law and Dean of Law and Social Sciences, London South Bank University

 

 

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Does the Segregation of Prisoners Violate the ECHR?

Raja Anwar Hamza Khan
Raja Anwar Hamza Khan

The Supreme Court case of Shahid v Scottish ministers [2015] UKSC 58 considered whether the segregation of prisoners is a violation of Article 3 (prohibition of torture and inhuman treatment) and Article 8 (right to a private life) of the European Convention of Human Rights (ECHR). In the case of Shahid, English law is shown to be unequivocal in holding the prolonged segregation of prisoners as a clear impediment to Article 8.  However, it was held that there had been no breach of Article 3.

Facts

The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy.

The decision to continue the segregation was based on a high threat of potential violence towards the appellant from other prisoners due to the extent of media coverage of his crime. As stipulated in section 94(1)(b) of the Prisons and Young Offenders Institution Scotland Rule 2006, solitary confinement of the appellant was justified for his safety: “[segregation of the prisoner for the purpose of] protecting the interest of any prisoner”.

The period of solitary confinement continued until the appellant’s eventual reintegration into the general prison population in August 2010.

The appellant initially challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The appellant was unsuccessful as the Scottish courts held that his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, of the ECHR.

However, the Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8 ECHR.

 

Issues and Judgment

The Lords were faced with three issues:

  1. Whether the segregation of the appellant had been compliant with domestic law (Prisons and Young Offenders Institution Scotland rule 2006).

    Imran Shahid
    Imran Shahid
  2. To ascertain if the segregation had infringed Article 3.
  3. To ascertain if the segregation had infringed Article 8

Domestic Law

The Supreme Court, as opposed to the lower courts, narrowed their focus mainly to s.94(5) of the 2006 Rules. The rule states:

a “prisoner taking part in a prescribed activity by virtue of an order made by the governor shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.”

Failure to authorise the segregation in the required 72 hours led to a 14 month period of invalid segregation of the appellant. Lord Reed further reasoned that the requirement of granting a renewal order to keep the prisoner in segregation for more than 72 hours elucidates that the intention of segregation is temporary in nature; therefore, it is imperative for the minister to reconsider any grounds of segregation.

It was held that the appellant had suffered no prejudice and was not entitled to remedy in damages solely due to the breach of s.94(5). However, the breach of the 2006 Rules did contribute to the discussion of Convention Article 8.

ECHR Article 3

Article 3 states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Lords quite bluntly held that the segregation had not led to conditions where Article 3 applies. The fair condition of the cell and its surrounding did not allow any possibility of degrading treatment. Similarly, the appellant had also received medical consideration. As a result of these elements, the minimum level of degradation required had not been met.

ECHR Article 8

The third, and the most potent, issue faced by the court was to determine whether Article 8 had been breached. Article 8 states:

1) “Everyone has the right to respect for his private and family life, his home and his correspondence.”

2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The questions that arose are accordingly:

  1. Whether the appellant’s segregation pursued a legitimate aim;
  2. Whether it was in accordance with the law;
  3. Whether it was necessary and proportionate in order to achieve the legitimate aim pursued.

The appellant’s segregation was for this own safety, so it was confirmed to have pursued a legitimate aim.

However, the second limb failed to meet the requirement, as segregation was done for many weeks without valid authorization by the minister, which is expressly provided in s.94(5).

Likewise for the third limb, Lord Reed ardently pronounced that the continued segregation had not been proportionate. The crux for whether segregation was proportionate was in the failure of the state to approach the possible alternatives to solitary confinement. The state could have taken measures to identify particular locations for the prolonged accommodation for prisoners who are unsuitable for mainstream accommodation; such locations would accommodate small groups of prisoners with reduced levels of association and increased officer supervision.

The appellant was found to have been held in segregation without lawful authority and Article 8 of the ECHR had been breached. The appellant was entitled to costs of the appeal and the expenses of the Courts of Session proceedings.

Commentary

Although the facts are straightforward in this case, Lord Reed’s judgment brilliantly handled the subtleties in the application of the law; in particular, the breach of domestic law was intelligently applied to the discussion of Article 8. The judgment is correctly decided since the facts of the case show the appellant had been segregated without proper authorisation; thus Art 8(2) of the ECHR had been breached.

The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.

However, if the 72-hour limitation is applied strictly, there can be practical drawbacks. In a situation where continued segregation did not have the required authorisation, would prison officials then be under a duty to return the appellant to the general population of prisoners even if this would endanger his own safety?

Similarly, in the case of Razvyazkin v Russia, it was held the longer segregation is continued, the stronger the reason must be for it, and the more must be done to ensure that it achieves its purpose. On the facts of Shahid, as found by the lower courts, it can be argued that there was strong reason for finding solitary confinement as being proportionate by considering the violent propensity of threats, which Lord Reed stated to be incorrect. The alternatives of Lord Reed have a negative bearing on the state expenditure by warranting new accommodations with increased supervision for these prisoners. Thus, this may bring forward serious policy considerations.

Raja Hamza Anwar Khan is a second year student at Sussex Law School.

Researching marginalised groups: some difficult questions

Alison Phipps
Alison Phipps

Republished with permission from Genders, Bodies, Politics

 

Every year, students on the MA in Gender Studies ask questions about doing research with marginalised groups. The university is an incredibly privileged environment, but many of our students are politically committed and care passionately about issues of inequality. Often, they want to contribute to causes by conducting their dissertation research on related topics. However, there are questions around whether exploring these through research with human subjects is appropriate – too often students end up asking for time and attention from people who already live difficult lives, and producing projects which (due to time constraints and a lack of background knowledge) make little difference. I therefore advise students to ask themselves a number of questions while selecting their research topics:

  1. Who is this research for? Is there a demonstrable need?

The best way to approach this question is to design research in collaboration with community groups – some charities and organisations have data collection needs and are happy to receive offers from competent and committed postgraduate students (you may need to provide them with a CV or informal reference to assure them that what you produce will be useable). The Centre for Gender Studies has four Associate Members – Galop, RISE, the Sex Worker Open University andSurvivors’ Network – who are asked each year if they would like any students to help them out with small research projects. Sometimes students have their own relationships with charities, NGOs or community groups, who can be asked if research might be beneficial (but the onus must be on their data collection needs and not your interests).

If there is no identifiable need in the community, there may be other ways to research the chosen topic which do not put people out or ask them to engage in intellectual, practical or emotional labour on your behalf. The best way to do this is to use pre-existing sources of data (see point 4 below).

  1. What are my motivations?

This question is related to the social need for the study, but pertains to you personally. Is this: (a) an issue and group you’ve been involved and familiar with for a while; (b) something you feel passionate about and want to educate yourself on; (c) an exploratory study which might lead to socially useful projects; (d) just curiosity? If (d), why are you curious about this group of people and is there a form of Orientalism at work? (Examples of some groups which are frequently exoticised and fetishised by ‘outsiders’: trans people, sex workers, Muslim women). If (b) or (c), you can probably conduct an initial study using pre-existing sources of data. If (a), you most likely already know of a community organisation or group to work with on a project there’s a need for.

Examine your motivations honestly – if you feel they are anything but honourable (or you are not sure what they are), do not conduct the study. If you feel confident about your motives and the need for your study, continue to examine and reflect on these throughout the research, to ensure the safety of your research participants and the rigour of your data. This does not mean spending hours navel-gazing and writing a methodology chapter which is little more than an autobiography. Instead, it requires you to make time to really look at yourself and become mindful of your relationships with participants and how they are structured by power and privilege. It may be possible to discuss these issues with some participants and to ask how they feel about the process – but this is a form of emotional labour which may be arduous as well (and therefore best avoided).

  1. Am I qualified?

Especially if you wish to research a more marginalised group of people, ask yourself if you have enough background knowledge or life experience to be doing so. There are differing opinions in the field about whether researchers should always be ‘insiders’ (and ways in which the ‘insider/outsider’ binary can and should be problematised), but if you are not at all familiar with the group in question and do not consider yourself an ally in their struggles, you should ask yourself whether you are in fact qualified to carry your project out.

Academia is full of relatively privileged people, and if we all stuck to researching our own social groups there would be huge gaps in the knowledge and evidence base about key social issues (bigger than there are already). However, research on more marginalised groups should proceed from a commitment to and association with the group in question, and if you wish to make a career out of this type of research it should be combined with advocacy around (not just lip-service to) diversifying the profession. Ideally, research on marginalised groups would always be able to be carried out by members of those groups – since they are the experts on their own lives. This does not mean there is no role for allies or that ‘outsiders’ can never carry out research, but the aim should be to diversify academia so that fields of research on marginalised groups could always be insider-led.

  1. Do I need to ask people for their time/attention?

If you are able to go ahead with a project which involves human subjects, this does not necessarily mean you should. Ask yourself if you really need to create a new dataset or whether there is existing material which can be used to answer your questions. Charities and community organisations often have their own data archives – by far the most common research request made by our Associate Member organisations is for a student to conduct analysis on a pre-existing dataset they have not yet had time to work with. If you are not working with an organisation there are a number of public data archives, including the Mass Observation Archive which is housed at Sussex University. There are also web-based sources of personal narrative which are public, such as blogs, vlogs or Tumblrs (although since these are not research archives you should ask authors for permission before studying them). There are also interesting projects which can be conducted through content/discourse analysis of policy documents and media sources, which can give greater breadth of perspective than the small number of interviews it would be feasible to conduct for an MA study.

Think hard about whether you need new data, before you consider asking people to provide it. If you are doing a research project at the request of a community organisation and they are keen for you to work with human subjects, explore with them ways in which your participants could be remunerated for their contribution (but with no sense of obligation). We have a small budget in Gender Studies to support you with this, as long as there is a good case for the research.

  1. How will I look after my participants?

Research ethics are important to any project, but particularly one which involves a researcher with more privilege working with participants with less. Ensure that you develop a rigorous framework around anonymity and confidentiality, and (most importantly) that this is communicated to your participants effectively and in appropriate terms. Be aware that if you are not an ‘insider’ you may not fully appreciate the risks posed by participating in your research, so design your ethics framework and research instruments in collaboration with the community organisation or charity you are working with. The university has comprehensive ethics guidance and pro-forma documentation available online, and you should work closely with your supervisor to ensure that you have designed your research in as ethical a manner as possible. You should also be aware that this is the bare minimum in terms of actually conducting research in an ethical way – ethics is a process which requires you to constantly reflect and (most importantly) listen. If you have not read any feminist literature on research ethics, remedy that before you even think about recruiting participants.

If you are working with a service organisation, explore ways in which they can help you to introduce yourself and put potential participants more at ease. When you recruit participants, emphasise that participating in the research is their choice and they can withdraw any time with no hard feelings. This is particularly important if you are recruiting through an organisation which provides help and resources, as there may be concerns that these are conditional on participating in your research. Be open to any misgivings or worries participants may have, and be aware of the fact that they may (rightly) suspect your motives. Also be aware that even if there is an identified social need for your research, people who are dealing with the practical and emotional consequences of oppression may not necessarily have the capacity to consider or care about it. It is patronising to expect participants to feel empowered, and arrogant to want to be appreciated, even if you have the best intentions. Of course, it’s possible to develop wonderful, mutually fulfilling relationships with research participants – but to expect this is a form of entitlement. Building trust takes time, especially if you are not an ‘insider’ or established ally (and often even if you are the latter).

  1. What will I do with the findings?

If you have been asked to conduct a research project by a charity or community group, ask them about helpful formats for your findings. Do not just forward them a copy of your dissertation report! Depending on the target audience, possible outputs might be a short briefing paper, an informational video or a training workshop for staff. Writing a dissertation is a stressful process, and it might be tempting to just submit it and then forget about the whole thing. However, this would constitute a betrayal of the organisations and people who have given you their time and emotional labour. It would also expose self-serving motivations behind your research, and might cause community groups and individuals to approach future requests for research participation with justified trepidation.

Consider what you might do if you are asked to take part in academic or policy events or are contacted by journalists about your research, once it is complete. Do you really need to occupy the platform yourself, or can you hand it over to a community representative? If there is specific interest in your dataset or findings you may be the best person to describe these, but you should also ask for a community representative to share your platform in order to explore the issues first-hand and in more depth. If the request is simply for a generic ‘expert’ (which it very often is), always pass this on to representatives of the group in question. NEVER give out names or contact details of your participants without permission – if individuals have shown an interest in dissemination you might pass requests on, but in general it’s best to channel these through organisations or community groups.

To summarise: if your research is not needed, don’t do it. If you’re unsure of your motivations (or if they’re self-serving), don’t do it. If you’re a complete outsider, don’t do it. If you can use existing sources of data, use them. If you do end up working with marginalised people, look after them. Afterwards, give up your platform whenever you can.

Alison Phipps is a Reader in Sociology at the University of Sussex

Disclosure and Compulsion: Asylum Applications and Criminal Charges: R v McGeough [2015] UKSC 62

Alexander Thompson
Alexander Thompson

In a judgment handed down on 21st October 2015 the Supreme Court rejected the appeal by ex-IRA member, Terence (Gerry) McGeough that evidence in his trial on four charges was inadmissible on several alternative grounds, all of which were rejected by the court.

 

Background

In 1981, McGeough and an accomplice attempted to murder postman and part-time soldier in the Ulster Defence Regiment, Samuel Brush. During the attempt, McGeough was seriously wounded. After surgery and treatment in Dublin, and during recuperation in Monaghan General Hospital, McGeough escaped leaving Ireland shortly thereafter. On 22nd August 1983, McGeough made an application for asylum in Sweden, which contained information to the effect that he was a member of the Irish Republican Army. McGeough’s asylum application failed and the British authorities obtained a file containing the failed application and the admissions made by McGeough in respect of criminal activities in the UK.

Gerry McGeough
Gerry McGeough

In 2010, McGeough was tried and convicted on four counts: possession of a firearm with intent to commit an indictable offence; attempted murder; and two counts (between January 1975 – June 1978 under s.19(1) Northern Ireland (Emergency Provisions) Act 1973, and May 1978 – June 1981 under s.21(1) Northern Ireland (Emergency Provisions Act 1978) of being a member of the IRA.

Cause of Action

Although information relevant to the attempted murder (‘of a British Army officer’ [sic]) and possession of a firearm were also included in the Appellant’s asylum application these convictions were not challenged, largely because the other evidence in relation to these charges was so overwhelming. However, in respect of the two charges of IRA membership, it was the Appellant’s case that the information contained in his asylum application was not admissible at trial for several reasons, of which only one was deemed of weight by the Court, that the contention that the Appellant had been ‘compelled’ to incriminate himself in his asylum application and that the Swedish authorities had exceeded the scope and purpose of EU Directive 2005/85/EC, arts.22 and 41 (relevant to both UK and Swedish asylum laws) in disclosing the incriminating information to the British authorities.

Manner and Form

Article 22(a) reads:

For the purposes of examining individual cases, Member States shall not:

  • directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum

 

Article 41 requires that:

Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work.

The court took the view that Art.22 required confidentiality while the examination and assessment of the application for asylum was ongoing (para.23) but not beyond that time, and certainly not after an application had failed. As to Art. 41 the court noted that the ‘confidentiality principle’ is a term whose application is defined by the relevant national law. Evidence was given that the tradition in Sweden is one of ‘openness in relation to public documents’ (para.11) and that the Appellant who had had the benefit of two lawyers’ advice would have been fully aware of this fact (para.12).

The court was not convinced either by the Appellant’s argument that if such an application were made in the UK, the material contained therein would, under UK implementation of the directive, be confidential (para.28). Indeed, it found such an interpretation actively ‘inconsistent’ with the framework of the Directive (para.27). In any event, it would not be the relevant requirement for an EU directive that all member states implement it in exactly the same fashion because of the discretion which grants member states freedom as to manner and form provided the minimum requirements and purpose of the Directive are met.

Disclosure and Candour

The Appellant argued that the ‘clear purpose’ (para.20) of the Directive was to ‘encourage applicants for asylum to make full disclosure’ and that applicants could only do so if they felt secure that any information provided would not be disclosed beyond the necessity to process the application. As a matter of public policy it can legitimately be argued that implicit in any asylum process are the notions of security and sanctuary but beyond that the argument becomes far harder to sustain. The court took the view that the requirements for confidentiality in Arts. 22 and 41 and elsewhere in the Directive did not constitute an ‘explicit requirement [of confidentiality] for all time and from agencies’ (para.23). Nor were the arguments by the Appellant that such requirements were ‘implicit’ in the Directive sustained.

Comments

In none of his trials did McGeough ever seriously contest his guilt of any of the four charges. On appeal (at para.13), his challenges were political (he claimed that he had been given assurances that his liability for the attempted murder would be covered by the contentious ‘on the runs’ immunity letters issued to some former terrorists) and procedural, challenging several aspects of the process in different hearings including an alleged breach of Art.6 ECHR because of the lapse of time as well as the non-prosecution assurances he claimed to have received.

In strict legal terms many of the arguments made by the Appellant were thin gruel indeed. His argument that he was ‘compelled’ to make full declaration of his past in his asylum application was found to have absolutely no basis in law by the Supreme Court, or in fact or law by the lower courts. Arguably, however, there is discretion inherent in the Directive which can be found in the term ‘alleged actor(s) of persecution’ rather than the more dry ‘country’ or ‘state’ used in Art.22 and elsewhere into which some higher form or level of confidentiality could be taken as implicit. In McGeough’s case at the Court of Appeal he had obliquely made this point in respect of breaches of Art.6 ECHR, that the UK authorities had pursued him beyond all reasonable duration in this matter. Such ‘persecution’ could legitimately create a justification for confidentiality ‘for all time and from all agencies’ (para.23) with such discretion retained by member states per Art.41. It could be imagined that Sweden would make an exception to its usual approach of openness where disclosure (even that application for asylum had been made) would endanger the safety of an asylum seeker, failed or otherwise.

Consideration also needs to be given to the areas of public policy which inform the necessity of candour in making an application for asylum, as there will always be a balance to be struck, particularly in ‘political’ cases such as this. States considering the granting of asylum will want the fullest information possible on the applicant, and asylum seekers are legally required to provide all information deemed essential the application per Art.20.1(a) of the Directive or risk the application failing. Meanwhile, the asylum seeker will naturally enough want to put his case for asylum in the most sympathetic if not necessarily frankest or fullest terms to maximise his chances of obtaining asylum. It is hard though to see this as genuine compulsion, as was alleged by McGeough, in either having to make the asylum application at all or what is disclosed in the application.

A further difficulty arises where the overtly criminal arises explicitly from the abstract political and the political context. Membership of a proscribed organisation might be one thing and it might be the case that where such membership is proscribed that the state from which the applicant is seeking asylum is an ‘actor of persecution’. This is qualitatively different however to being a member of a proscribed organisation on ‘active service’ (as McGeough, in IRA military parlance would certainly have regarded himself) and taking part in terrorist actions which is a markedly different matter. McGeough would of necessity had to be frank about his membership of the IRA (otherwise he was seeking asylum merely because he was on the run for firearms offences and attempted murder) but he was at least partial in his relating of the attempted murder (a postman and part-time UDR soldier such as Samuel Brush is not in any candid sense a ‘British Army officer’). Here the applicant was not fleeing a persecuting regime but rather, requirements of criminal justice which it would hard to describe as persecution. Whether in this instance the actions of the UK legal system would have amounted to persecution had McGeough been facing only the charges of IRA membership remains unclear in practical terms, but the Supreme Court has stated clearly the scope and purpose of this Directive as to any requirements of confidentiality without such subjectivity.

Alexander Thompson (LL.M Sussex) is a barrister

Consent Orders – Questions of Principle and Policy: Sharland v Sharland [2015] UKSC 60

 

Alex Thompson
Alexander Thompson

On 14th October 2015 the Supreme Court handed down judgment in Sharland v Sharland. At first glance the decision simply re-affirmed certain distinctions between consent orders in the family courts and those made in civil matters. At another level however the decision can be seen as an assertion that the family courts continue to take a traditionally robust view of questions of principle and of the requirements for full and frank disclosure while exhibiting a sophisticated understanding of modern families and financial arrangements. In allowing Mrs Sharland’s application and siding with the minority judgment of Briggs LJ in the Court of Appeal, the Supreme Court was not only adhering to the tenet of enforcing fair distribution of assets, but also demonstrating that the courts are not to be trifled with in situations where disclosure has been far from the standard required.

The Facts

The Sharlands separated after 17 years of marriage in 2010. During this time the husband had developed a software business, AppSense, the value of which was variously assessed at being between £60m – £88.3m. Although the husband’s case was for equal division of assets, he initially argued for Mrs Sharland’s share to derive entirely from liquid assets, while he would retain the unencumbered shares in AppSense. However agreement was reached during the hearing that the wife would receive £10m in cash and property and 30% of the net proceeds from the sale of the husband’s AppSense shares, whenever that might take place.

The draft consent order was drawn up. However, before it was sealed, it was reported that AppSense was ‘actively’ being prepared for an IPO which placed a value on the company of between US$ 750m – US$1,000m. In court, it was shown that preparations for the IPO had been in ‘full swing’ before and during the hearing was later shown in court, and the husband’s evidence was found to have been ‘seriously misleading’ and ‘dishonest’. The most interesting question was whether, per the established test in Livesey v Jenkins [1985] AC 424, the husband’s non-disclosure was material to the agreement and consequently to the pending consent order.

Material Non-Disclosure

Common law authority has long held that, while married couples may make whatever financial arrangements they choose after the breakdown of marriage (or, latterly, civil or same sex partnerships), such arrangements cannot oust the jurisdiction of the court. Baroness Hale (at para.13) noted that the authority of consent orders in the family courts derives from the statutory powers under s.33A Matrimonial Causes Act 1973. Concomitant to these powers is that the entitlement of one or other of the parties to renounce any such agreement is curtailed at the court’s discretion, with that party having to satisfy the court that the order should be set aside.

Further, while the court retains its own power to amend consent orders, this should not be done ‘lightly’ (Livesey, Hailsham L.C, at 430). One obvious reason to set aside an order is where non-disclosure inhibits the court’s ability to reach a fully-informed decision. Brandon LJ in Livesey (at.445) held that the relevant test was whether the court would have made a ‘substantially different’ order if full disclosure had been made. In the Court of Appeal in Sharland, Briggs LJ (para.46) held that a more pertinent test for when the non-disclosure was ‘fraudulent’ (which was not the case in Livesey), was whether the ‘non-disclosure has deprived her of a real (rather than fanciful) prospect of doing better at a full hearing’.

Fraudulent Misrepresentation

Baroness Hale’s judgment, which for the most part supported Lord Briggs’ dissenting judgment in the Court of Appeal, relied heavily on the phrase ‘fraudulent misrepresentation’. While this phrase is commonly found in contract law, Baroness Hale did not further explore whether the fit between contract and family law was a happy or exact match (para.32).

However, it appears to be more than mere convenient shorthand that Her Ladyship used this term. Rather, Baroness Hale’s judgment held that the very nature of the act was in and of itself the factor in establishing the materiality of the non-disclosure. That is, the behaviour of the party failing to make full disclosure, rather than the information not disclosed, was the proper test, and that this would be sufficient to vitiate any agreement and resulting consent order. Baroness Hale held this to be a matter of policy and principle.

In Sharland, the public policy justification was couched in the conventional terms that the courts owe society a duty to ensure that proper provision is made for dependent family members (para.18). There is no question that the agreement reached by the parties in Sharland made such provision in respect of the Sharlands’ children and for Mrs Sharland herself. Notwithstanding this, Baroness Hale bound together both the parties’ and the public interest stating that both impelled a duty on the parties of full and frank disclosure (para.21).

Notwithstanding this, Baroness Hale bound together both the parties’ and the public interest, stating that both impelled a duty of full and frank disclosure (para.21) on the two parties. In stating this, Baroness Hale appeared to give this principle a moral authority above and beyond the obvious fact that, without full and frank disclosure, the court would not have the tools to do its job properly and would be unable to reach the higher level of disclosure typically required in the family courts.

In her analysis (paras.29 – 36), although talking in the abstract Baroness Hale used the word ‘victim’ five times in positing a shift in the burden of proof from the perpetrator to the victim. This was part of a balancing exercise necessitated by what Baroness Hale baldly described as a ‘case of fraud’ (para.32) with deception practised upon both the victim and the court which would thereby be unable to properly ‘conduct its statutory duties’. Her Ladyship further felt that it would be ‘extraordinary’ to uniquely disadvantage the wronged party in a matrimonial case involving fraudulent misrepresentation as opposed to parties in contract matters in the civil courts (para.32).

Comments

In considering what is or is not material to the financial settlement in such cases, it is perhaps instructive to regard the initial agreement and the consent order as two different and distinct forms of obligation.

In the first instance, the agreement is between the parties only (and it is often the case that such agreements can be reached privately in family matters without reference to the courts at all). The consent order then merely affirms the agreement, binds the parties to the authority of the court and supplants or gives full legal force (de Lasala v de Lasala [1980] AC 546, Diplock LJ 560G-H) to the agreement between the parties. This is precisely the case in civil matters, where the contractual agreement between the parties is the basis of the authority of the order, and is far less likely to carry the overt constraints of consistency with public policy that inform decisions in the family courts.

However, unlike the civil courts, the court order in family matters may also be viewed as much as an agreement between the court and the public as between the court and the parties. Baroness Hale referred to this public policy requirement at para.18 in Sharland, and elsewhere referred to the duty of the courts to protect the interests of both the parties and the public. It is in this context that Mr Sharland’s non-disclosure becomes material. In agreeing to a 30% share of AppSense, Mrs Sharland’s overall lump sum might have been as low as £18m (Mr Sharland’s valuer’s estimate) or as high as £300m (the upper end of the projected IPO valuation).

It remains the case however, that her proportion of the asset would remain unchanged and any windfall accruing to the husband at whatever date would proportionally accrue to the wife in equal terms. Even if the disclosure was far from full and frank, it was largely immaterial in respect of the agreement between the parties and the money the wife would expect to receive. As a matter of policy between the courts and the public, however Mr Sharland’s non-disclosure (which was variously held to be ‘fraudulent misrepresentation’ (S v S [2014] EWCA Civ 95, Briggs LJ at para.29); deliberate and ‘dishonest’ passim) was significant and highly material.

Clarity in financial matters in the family courts and the concealment of assets might be as straightforward as inadvertent or deliberate non-disclosure (as in Sharland)), or might take the form of the movement and concealment of assets either physically or, increasingly, through ever more complex financial instruments. In Sharland, it seems unlikely that the courts would have reached any significantly different arrangement (notwithstanding obiter of Briggs LJ at para.30) than that agreed between the parties, even if they had been provided with all the information in respect of the IPO beforehand.

However, the Supreme Court in Sharland, in restating the requirement for full and frank disclosure, has shown that the courts continue to take a dim view of any efforts to evade such duties, and will find against the party failing to disclose as a matter of principle and policy as much as fairness and equality.

Alexander Thompson (LL.M Sussex) is a barrister

 

Free Speech, or Defamation?

Lily Parisi
Lily Parisi

The ECtHR case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina concerned defamation proceedings brought against four NGOs (Non-Governmental Organisations) by the entertainment editor of a public radio station. The NGOs had submitted a letter of complaint to district authorities alleging misconduct of the entertainment editor, which was subsequently published by newspapers.

The difficulty the Court faced was in balancing the conflicting rights of the parties:

  1. The entertainment editor’s right to protect their reputation (as a prospective candidate for a position as a public servant);
  2. The applicant NGOs’ right of freedom of expression (Article 10 of the European Convention of Human Rights (ECHR)) to report alleged misconduct of a public servant to a suitable public body.

Contrary to expectation, the NGOs’ comments were not discussed in regard to serving public interests; an interesting factor, as it indicates that in this case, the NGOs’ comments may have been made without sufficient public concern and therefore unnecessary.

FACTS & BACKGROUND

 The four NGOs involved were:

  1. The Brčko Branch of the Islamic Community of Bosnia and Herzegovina (Medžlis Islamske Zajednice Brčko)
  2. The Bosniac Cultural Society “Preporod” (Bošnjačka zajednica kulture)
  3. The Bosniac Charity Association “Merhamet” (Humanitarno udruženje građana Bošnjaka Brčko Distrikta)
  4. The Council of Bosniac Intellectuals (Vijeće Kongresa Bošnjačkih intelektualaca Brčko Distrikta)

In May 2003, the applicants submitted a letter to the highest authorities of the Brčko district of Bosnia and Herzegovina in complaint of the alleged misconduct of the entertainment editor of their district’s mutli-ethnic public radio station. The NGOs alleged that the editor had been involved in disparaging behaviour towards Bosniac people and their culture; therefore, the editor should be disqualified as a potential candidate for the position of the radio station’s director. The letter was later published in three different newspapers. Consequently, the entertainment editor brought civil defamation proceedings against the NGOs.

First Instance

At first instance, the claim was rejected. The Court found the applicants could not be held liable as they had not themselves published the letter in the media. The relevant part of the judgement reads as follows:

From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District…and it was not sent to the media… [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information.

Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.’
The Appellate Court

In 2007, the appellate court found the NGOs were liable for defamation due to the false nature of the statements they had made about the editor. The comments made by the NGOs were also found to be significantly damaging to the editor’s reputation. It was held that to establish liability for defamation under section 6(1) of the Defamation Act 2003, it was irrelevant that the NGOs did not in fact publish the letter.

The NGOs were ordered to retract their statements within 15 days. Upon the NGOs’ failure to comply, the editor brought enforcement proceedings and in December 2007, the applicants paid 1,445 euros for the enforcement of the judgement of July 2007.

Further, the Constitutional Court upheld the appellate court’s judgement in May 2010.

The European Court of Human Rights

The applicant NGOs complained that the domestic courts’ decisions against them had breached their right to freedom of expression (thus in violation of Art. 10 of the ECHR). The NGOs argued that they had never intended to publish the letter and that this had occurred without their knowledge, action or consent. They claimed that their only intention was to inform those in authority about certain irregularities in a matter of public interest and to prompt them to investigate the allegations.

The European Court of Human Rights held by four votes to three that there had been no violation of Article 10.

The Court found that the national courts, which had heard the witnesses in the defamation proceedings, had correctly concluded that the applicant NGOs had acted negligently in reporting the entertainment editor’s alleged misconduct, without making a reasonable effort to verify the accuracy of this misconduct.

The national courts were found to have struck a fair balance between the radio editor’s right to reputation and the applicants’ right to report irregularities about the conduct of a public servant.

Dissenting Opinion

Judges Nicalaou, Tsotsoria and Vehabović gave a joint dissenting opinion. They argued that there had been a violation of Article 10 of the Convention on the basis that the applicants’ rights to hold opinions and to receive and impart information had been breached.

The dissenting opinion drew on the fact that no question arose as to the meaning and effect of the relevant provision in this case, which was Section 6 of the Defamation Act 2003. The act defines defamation as causing damage to the reputation of a person by ‘…ascertaining or disseminating a falsehood in relation to that person…’ which they argued was not satisfied by the NGOs comments.

The facts surrounding the publication of the letter were also highlighted; it was argued that ‘it cannot be said that the applicants were, in the circumstances, responsible for disseminating the letter complained of.’ The dissenting opinion further stated that the letter had been ‘both private and confidential, and was made to persons who had a direct institutional interest in the matter and were thus entitled to receive it. The letter was certainly not meant for wider publication…’

COMMENTS

I agree with the majority ruling that there had been no violation of Article 10 of the Convention. In my opinion the entertainment editor’s right to reputation outweighs the applicants’ right to report irregularities about the editor’s conduct in this case. Of crucial importance here is that the editor was a prospective candidate for a position as a public servant, thus maintaining their respected reputation was fundamental to their future prospects, which should be taken into consideration.

With respect, the dissenting opinion is less persuasive, particularly with regards to the suggestion that the applicants were not responsible for disseminating the letter in question. The applicants do appear to have been reckless and careless in believing that the letter would not be disseminated widely. It is fair to suggest that greater awareness of possession of the letter and a conscious effort to ensure it was not publicised should have been pursued.

What strikes me as significant in this case is that an open discussion of matters of public interest did not come into play in the balancing exercise. The lack of discussion of public interest suggests that the alleged misconduct of the editor was not in fact something that was even in the public’s interest. One could further argue the complaint, therefore, was somewhat meaningless and unnecessary in light of the NGOs’ expected exclusive commitment to public interest. It must be asked whether the European Court of Human Rights should even be considering applications based on relatively trivial complaints when other applications could be of a higher importance.

Lily Parisi is an 2nd year undergraduate student at the School of Law, University of Sussex