courts
Rishi Sunak Accused of Lying Over Cost of Justice – as Victims Made to Pay Thousands to Access Vital Court Records
The son of a domestic abuse victim who killed her abusive husband in 2010 (the conviction was later overturned) has accused the PM of lying after claiming families of homicide victims get free transcripts of court proceedings.
In England and Wales, victims of crimes and their families are currently asked to pay hundreds or even thousands of pounds to private companies for transcripts of court hearings that relate to them.
The Open Justice for All campaign says this “impossible cost of closure is not one that many victims cannot afford to pay — especially given how traumatic stress can impact a victim’s ability to go to work and focus.”
“Traumatic” Experience
David Challen, now a campaigner on domestic violence, has been refused free access to court transcripts for his mother’s successful appeal against her 2011 conviction for murdering her husband.
David Challen has been quoted fees of £1,200 to read his 2019 appeal hearing that cleared his mother of killing her husband. She was freed on grounds of diminished responsibility due to the abuse she faced.
But responding to a question from Lib Dem MP Sarah Olney at PMQs on Wednesday, PM Rishi Sunak told MPs on Wednesday: “We already offer a free service to families of homicide victims” to access court transcripts.
David told Byline Times: “The Prime Minister lied in PMQ's when questioned about court transcripts…Here I am, the family of a homicide victim being denied a free service that should be available at no cost not only for myself, but for all victims of crime.”
The London-based campaigner says the lack of access to vital court documents has held back his recovery journey in processing what he and his family went through.
On 11 December 2023, David Challen's request for a transcript of the 2019 appeal – part of his therapeutic recovery – was refused, with the registrar saying: "The transcribers will charge a fee for providing it. There are many pressures on public funding at present. Having considered your request, Lord Justice Holroyde has concluded it would not be an appropriate use of public money for that fee now to be paid from public funds. Your request has therefore been refused."
David says the high costs he and other victims face are "traumatic". "As victims of crime these are our stories, our lived experiences and we deserve a right to read and come to terms with them. Paying for that service is borderline state sanctioned abuse."
Letter from the court rejecting David Challen's request for a free court transcript (Dec 2023)
After asking for the Judge to reconsider, Challen was told by the court that even to listen to a recording of proceedings would “involve being present in a courtroom at the [Royal Courts of Justice], which can only be done under supervision. It follows that this request will require a court official to be present whilst you listen to the whole of a recording of a hearing which occupied all or most of two court days.”
The court official added: “Lord Justice Holroyde remains sympathetic to your position, but does not believe that is an appropriate use of the limited staff resources of the court.”
He has also been told that the original trial recording from 2011, which put his mother behind bars, was “destroyed” – “yet I was not informed there was a time limit.”
Despite the Prime Minister’s claims about free transcripts, there appears to be nothing about free transcripts being provided for the families of homicide victims on the official Government information page, or in either of the necessary application forms.
The five-page form to request extraordinary waiver to receive a transcript “at public expense” requires applicants to set out their monthly expenses.
The Government's forms requesting a waiver of transcription fees ask for a full breakdown of the applicant's monthly expenses (Byline Times screengrab)
David Challen added: “The exploitative system that bars our therapeutic means of recovery is a dark ages practice that needs to be abolished. As victims of crime these are our stories, our lived experiences and we deserve a right to read and come to terms with them. Paying for that service is borderline state sanctioned abuse.”
"A Mockery of Justice"
Survivor Juliana Terlizzi has been campaigning to get the law changed and secure 'real open justice'. Photo: Supplied
In 2020, 36-year-old Juliana Terlizzi was drugged and raped by then-boyfriend, Hubert Greliak, 35. She has waived her anonymity to speak about her experience of the justice system.
The trial of her rapist took nearly two years to get to court, as the Mirror reported. Finally, in 2022, Greliak was found guilty at Isleworth Crown Court of rape and assault by penetration, and jailed for over 13 years).
But Juliana was then told by the court that a transcript of her ten-day trial would cost £7,459.20, despite reading it being recommended by her therapist.
"It just feels like a mockery. It feels like they don't care about us. We [the victims] are always an afterthought." She described her experience of the justice system as “horrific”.
“If transcripts are free in Brazil, a developing country where I'm from, why can't we do it here?,” the survivor and campaigner told Byline Times.
In Scotland, victims in rape and serious sexual assault cases now have access to transcripts from their court cases free of charge, under a year-long trial.
Charlotte’s Case
Charlotte, whose identity is being protected as her alleged abuser was found not guilty, was discouraged by police from attending the full magistrates case last year, aside from giving evidence.
After the case fell, however, she was told there were no records available for the court hearings.
“I had requested a live link to give my evidence from another room in the court. And that was declined. So basically, I was told: you have to come to give evidence, and then you can't see the rest of the trial, or hear the rest of the trial. And when he was found not guilty, I obviously wanted to understand why or what happened, what was said and all of that…
“For me to really understand and be able to move on and let go of all the things that kind of happened, I really wanted to know what was said,” Charlotte told Byline Times.
Notes from a barrister for the CPS, which were eventually shared with her, revealed that the judge suggested she was an unreliable witness “because I waited eight months to report the crime: the crime being a [multiple] year sexually, physically, mentally abusive relationship.
“And the second thing she said was, ‘you clearly spoke to other victims of domestic abuse, so you knew exactly what to say’.”
Charlotte wanted to hold the judge to account for these apparent sexist remarks. “But of course, the only way to put a complaint in is: you need your transcripts, you need proof that that was what was said. So when I found out that a Magistrates Court is not actually recorded, that was really upsetting.”
She spoke to other victims and helped develop the Open Justice campaign. “It's about me talking about the most intimate and horrific period of my life. Why can I not have the information about that?”
Another case, reported by The Times involved ‘Lily’, a child abuse and rape survivor, whose mother was quoted £6,534 for trial transcripts, eventually crowdfunding £1,428.90 for a partial transcript. Other victims have reportedly been quoted fees up to £22,000.
‘Dragging their Feet’
After speaking to constituents affected by the scandal, Liberal Democrat MP for Richmond Park, Sarah Olney, introduced a Commons amendment to the Victims and Prisoners Bill in November, urging the Government to waive transcript fees for victims of sexual violence, a move supported across party lines.
Despite this, the amendment was not selected for a vote by the Speaker and was not included into the legislation.
Instead, the Government has proposed a one-year pilot to provide victims of rape and other serious sexual offences with the judge's sentencing remarks for free. Critics say the measure falls short as it excludes non-guilty verdicts and any of the rest of the trial process, unlike the scheme in Scotland.
An open letter backing the campaign has been co-signed by 41 others include the CEO’s of Refuge, Rape Crisis UK, Women’s Aid and SAMM, as well as Cherie Booth CBE KC, the Victims’ Commissioner for London, the Chair of the Justice Select Committee, and the Mother and Father of the House of Commons.
The letter repeated the ask in the amendment which would ‘Make provisions in the Victims’ Bill to enable victims and bereaved families to request to receive a court transcript free of charge’.
The Victims and Prisoners Bill has now passed to the House of Lords, with the open justice amendment re-introduced by Baroness Brinton (Liberal Democrat). It is set for a vote on April 23.
Neither Labour nor the Government have indicated they will support the free transcripts amendment yet, on cost grounds. The cost of transcripts, managed by private companies, remains a barrier due to the fact that the notes are taken by hand, and then digitised.
However, there are now extensive, low-cost AI-powered transcription tools already on the market and being used by millions of people
Making them freely available would cost around £5.3m a year, based on 2022 figures compiled by the House of Commons library.
In 2017, Labour MP David Lammy said: “As part of the Government’s £1 billion court modernisation programme, all sentencing remarks in the Crown court should be published in audio and/or written form…This would build trust by making justice more transparent and comprehensible for victims, witnesses and offenders.” However, to date, Labour has not yet backed the amendment.
Sarah Olney MP said: “No victim or bereaved family should be forced to pay thousands to access a court transcript, and it is clear our current system is failing to address this glaring inequality.
“Justice should not have a price tag, and I am so honoured to stand side-by-side with victims and bereaved families on this vitally important campaign.
“Cases like this are sadly all too common, and the Justice Secretary must hear our calls for change and accept amendments to the Victims’ Bill which will help reduce the cost of these transcripts for victims.
“It is high time the Government listened to victims and experts and finally made this much needed change.
A Ministry of Justice spokesperson did not respond to our specific questions but told this newspaper: “It is vital victims get the support and information they need to rebuild their lives and move on. That is why we’ve announced a new pilot scheme that will enable victims of serious sexual offences to request a copy of the judge’s sentencing remarks free of charge – building on a provision already in place for families of homicide victims in cases of murder or manslaughter.
“While judges can already decide to provide a full or partial transcription to victims, this pilot will inform our next steps as we continue to look at all other options to reduce the costs of providing them.”
Just One-in-Four Voters Back Rishi Sunak’s Threat to Quit ‘Foreign Court’ of ECHR
The Prime Minister Rishi Sunak this week threatened to quit the ECHR, saying that he would take Britain out of what he described as the “foreign court” if it stood in the way of his plans to deport asylum seekers to Rwanda.
"I do believe that border security and making sure that we can control illegal migration is more important than membership of a foreign court", he told the Sun newspaper.
However, new polling commissioned by Byline Times this week suggests that just one-in-four (26%) voters would back leaving the European Court of Human Rights.
By contrast, 43% of those surveyed by pollsters We Think said that they would support remaining within the international court’s jurisdiction.
A further third (32%) of voters said they don’t know what they thought about the issue either way.
Conservative MPs have been piling pressure on the Prime Minister to back quitting the ECHR in the party’s upcoming general election manifesto, with some commentators even suggesting that the party could promise to hold a referendum on the issue.
However, unlike Brexit which ultimately gathered support from a majority of voters, the issue of Britain’s membership of the ECHR appears to be only a minority concern.
Even among Conservative supporters, support for quitting the court is still not a majority proposition, the poll suggests, with just 46% of those surveyed agreeing that the UK should leave.
Sunak has previously dampened down expectations of ever quitting the ECHR, with the Rwandan Government hinting last December that the country would pull out of their deportation agreement with the UK if they quit the ECHR.
However, Rwandan officials appeared to back away from this suggestion this week following Sunak’s latest intervention, saying that the UK's membership of the court was a matter for Sunak's Government.
Despite Sunak's threat to leave the ECHR, the Prime Minister continues to insist that he believes doing so won't be necessary, saying this week that the Government's Rwanda scheme is "in compliance" with all international conventions the UK is already signed up to.
However, the UK's Supreme Court ruled last year that the Government's plan would not be in compliance with international law, due to their assessment that Rwanda is not a safe country.
The Council of Europe's Human Rights Commissioner last month savaged what it described as the "dangerous" Rwanda scheme, which it singled out as an example of states "dismantling collective human rights safeguards [and] eroding legal and democratic checks that protect all our rights".
Human rights groups have also criticised plans to deport people to the country, where political opponents of the country's dictator Paul Kagame continue to be targeted by the regime.
However, last month a Conservative peer defended the scheme, saying that the country was indeed a "perfectly safe country" as long as you "don't oppose the Government".
‘Why We Will Apply to Take Ofcom to Court Unless It Explains Its Approach to GB News’
Readers of Byline Times are likely to have been among the many who have complained to Ofcom about GB News and its partisan political stance.
Byline Times itself has repeatedly scrutinised the broadcast regulator’s unwillingness to enforce the impartiality requirements of its Broadcasting Code, other than administering a few slaps on the wrist for breaches so glaring and egregious that they could not be ignored or excused.
It has also attempted to establish the reasons for Ofcom’s forbearance.
We may be about to find out a bit more about what’s going on at Ofcom’s Riverside House HQ as I have teamed up with the Good Law Project to take the first step in a legal process, putting the regulator on notice that we intend to apply for a judicial review of its approach to GB News if Ofcom does not make it clear that it has not changed its policy in the case of smaller or non-public service broadcasters.
In particular, holding them to different standards from those governing the public service broadcasters as far as impartiality is concerned – something which the Code does not appear to permit.
What finally prompted this action were remarks by Ofcom's CEO Dame Melanie Dawes in an interview with Sky News on 13 March. In it, she stated that its requirement for due impartiality was not "an absolute test of equal balance" but has to be achieved "in a way that’s appropriate for the audience expectation, in a way that’s appropriate for the subject matter. We expect a range of views to be brought to bear, rather than just one single view or small cluster of views". This, she explained, "can be done… in lots and lots of different ways".
But, crucially, she then added: "The standard for someone like the BBC, which reaches still, 70% of the TV viewing audience for news is a different one from that of a channel that has an audience of maybe 4% or 5% of a of the viewing public. We expect different things and I think that's appropriate."
She then went on to make a distinction between different kinds of broadcasters.
On the one hand, there are the public service broadcasters and Sky News, with their "pretty scrupulous approach to impartially", their "high standards… underpinned by the Broadcasting Code", and the "high levels of trust" that people have in them.
On the other, there are now channels "that can present the news from a particular perspective. It’s not about the overall output of a channel, as long as for each programme there is a sufficient range of views brought to bear. And I think that that allows a level of diversity and plurality in provision to be brought to the viewing public".
It is our case that Dame Melanie is proposing that channels with relatively low audience figures (although it should be pointed out that GB News still reaches millions of citizens) are held to a different standard of impartiality from that applying to the public service broadcasters.
We also argue that, judging by Dame Melanie’s interview, ‘different’ here means less ‘scrupulous’ than the ‘high standards’ underpinned by the Code.
In our letter to Ofcom, we refer to this as the “lower standards for small or non-public service broadcasters approach”.
We are contending that this amounts to a revision of the due impartiality requirements of the Code, that this revision has been undertaken by Ofcom without any form of consultation, and that this runs counter to the 2003 Communications Act.
Among other things, this Act created Ofcom and required it to establish a standards code. Section 319(1) states: "It shall be the duty of Ofcom to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives."
No public consultation on the specific subject of impartiality has taken place since 2007, when Ofcom published the discussion document 'New News, Future News’, which did indeed suggest relaxing the impartiality rules for smaller channels. However, the suggestions were badly received (except, all too predictably, by newspapers owned by Rupert Murdoch, who at that time was itching to turn Sky News into Fox News UK) and the idea was quietly dropped.
But, as Stewart Purvis, former Ofcom content and standards partner, and Chris Banatvala, Ofcom’s founder director of standards, have pointed out: "It is not for Ofcom but Parliament to decide whether impartiality rules should be weakened, changed or abandoned. If, after public and parliamentary debate, there’s a view that perhaps impartiality should only apply to public service broadcasters, then so be it. But, at the moment, the rules are being changed by the back door."
We are also asking for clarification of the meaning (if any) of Dame Melanie’s statement that due impartiality "is not about the overall output of a channel".
As Ofcom is always at great pains to point out, the Code requires that news programmes in whatever form are presented with 'due’ impartiality – and both the Communications Act and the Code stress that "special impartiality requirements" apply to news and other programmes dealing with "matters of political or industrial controversy and matters relating to current public policy". These are, of course, GB News’ stock-in-trade.
But, although the word ‘due’ is made to do a great deal of heavy lifting in the Code and in its accompanying guidance notes – indeed, threatening to qualify the very notion of impartiality out of existence – nowhere is it suggested that due impartiality turns on the audience share that a particular channel enjoys.
When fining RT £200,000 in July 2019 for breaches of its impartiality rules, Ofcom explicitly stated that, although RT had a relatively small audience of, on average, 2,300 viewers, amounting to a share of total viewing in the UK of 0.03%, "in this context, the extent of a channel’s audience cannot sensibly dictate the gravity of the breach, not least because the due impartiality regime could easily be circumvented and undermined if smaller broadcasters were allowed an effective exemption from generally applied standards".
When RT appealed against the fine, the Court of Appeal stated that "the number of viewers affected by the partial broadcasting is not the point, because Parliament has determined that such broadcasting shall be duly impartial". It also pointed out that the harm caused by partial broadcasting "is not limited to the harm caused to viewers but extends to the harm indirectly caused to members of society generally by the provision of broadcast news and current affairs that lacks due impartiality".
When fining talkSPORT in February 2020 for impartiality breaches in three episodes of a programme presented by George Galloway, Ofcom announced that although it "recognised that the audience for the programmes in question was small when compared to some other radio services", it considered that the three repeated breaches of certain of the impartiality rules in its Code "had the potential to adversely affect those listeners who chose to listen to the relevant programmes and who were therefore presented with coverage of important policy and political matters which denied them an appropriately wide range of viewpoints".
Our case rests largely on the question of whether GB News, as a smaller broadcaster, is being held to different standards from those governing public service broadcasters as far as impartiality is concerned. However, there are also other aspects of Ofcom’s approach which are troubling and are in need of investigation.
Firstly, there is the matter of freedom of expression.
In her oral evidence to the House of Commons’ Culture, Media and Sport Committee last March, Dame Melanie stated that "the phrase 'freedom of expression’ is a very important part of this debate – one that perhaps should be a little bit more prominent".
In the wake of the furore following then Conservative Deputy Chairman Lee Anderson interviewing then Home Secretary Suella Braverman in September 2023 on GB News, in answer to a question about whether the Code was fit for purpose, she was quoted in the Guardian as stating that: "The rules are flexible, they require us to prioritise freedom of expression, which is missing a bit in this conversation, and we feel we’ve got plenty of flexibility."
The only problem here, however, is that the rules do not require Ofcom to ‘prioritise’ freedom of expression – they merely require it to take into consideration Articles 9 and 10 of the European Convention on Human Rights when making their judgments. In point of fact, however, they should be compliant with these articles.
In any case, the idea of freedom of expression championed by Dame Melanie, and also by Ofcom Chair Lord Michael Grade, seems to echo that of Elon Musk and his fellow ‘free speech fundamentalists’ – namely that rules governing any speech on any platform should be at the very least relaxed, regardless of its provenance and the damage it might inflict on others, or on public and democratic life in general.
Second, there is the idea that what Ofcom really wants is that viewers should be able to access views other than those that they encounter on the public service broadcasting channels. So, for example, in her appearance before the Culture, Media and Sport Committee, Dame Melanie said that "we are always thinking about freedom of expression here and do not want to see just a single, monocultural – a mono-representation of views on British TV. When you compare what you get in the UK with what you see in America, which is unregulated, it is very, very different".
Similarly, in her Sky News interview, she remarked that "it’s very important that we uphold freedom of expression. And that’s the freedom of the broadcaster to broadcast and to express, if you like, their creativity in their journalistic skill in multiple different ways. But it’s also the freedom of the viewer to receive a range of different formats and opinions".
Subtextual it may be, but lurking behind these pronouncements there seems to be the highly questionable assumption that the public service broadcasters are beaming at their viewers a particular view of the world. And, in the current 'culture war’ climate, one strongly suspects that the ‘view’ that Ofcom has in its sights is that of the dread ‘metropolitan liberal elite’.
It’s almost as if the real problems are seen as lying with the allegedly out-of-touch public service broadcasters, and particularly the BBC (which Ofcom now regulates), while GB News has brought a welcome blast of fresh air to a stale and staid broadcasting environment.
Dame Melanie’s evocation of the variety of representations which are broadcast in the US is a worrying reminder that Fox News was launched there on the back of the canard that it was going to be ‘fair and balanced’ by providing an alternative to the ‘liberal bias’ of the existing news networks. But the truth of the matter is that the latter appear to display such a bias only when viewed from a vertiginously conservative perspective, whereas Fox and the various other populist channels are about as unfair and unbalanced politically and ideologically as it is possible to imagine.
Nonetheless, the Foxification of news and current affairs on British television could well be the result of Ofcom’s apparent rewriting of the impartiality regulations in its Broadcasting Code. Unless, that is, this process can be halted and then thrown into reverse.
Julian Petley is a Honorary Professor of Social and Political Sciences at Brunel University London
‘Extraordinary’ Claims of Evidence Spoliation in NHS Whistleblower Case
Questions have been raised around court claims of evidence spoliation and recoverability in a high-profile NHS whistleblowing case during which tens of thousands of emails were deleted.
NHS doctor Chris Day has won the right to challenge a tribunal decision about information governance in NHS hospital trusts and the scrutiny applied to attempted evidence destruction at employment tribunals.
Day exposed acute understaffing at a south London intensive care unit linked to two patient deaths in 2013. His decade-long legal campaign has since revealed a lack of statutory whistleblowing protections for nearly 50,000 doctors below consultant level in England.
An appeal tribunal in February refused Day the right to challenge key aspects of an earlier ruling that cleared Lewisham and Greenwich NHS Trust (LGT) of concealing evidence and perverting the course of justice when one of the trust’s directors deleted up to 90,000 emails during a tribunal hearing in July 2022.
That hearing heard that LGT communications director, David Cocke, had attempted to destroy tens of thousands of emails and other electronic archives that were potentially critical to the case.
An unsigned witness statement submitted to the tribunal on behalf of Cocke claimed that the information had been “permanently” deleted. LGT has since claimed that the cache was recovered and submitted to the tribunal, something Day disputes.
Appeal tribunal judge Andrew Burns described Cocke’s conduct during the 2022 hearing as “extraordinary”.
Cocke’s actions followed LGT’s late disclosure of more than 200 pages of documents and, the tribunal heard, suggested that the trust’s CEO, Ben Travis, had given “inaccurate” and potentially misleading evidence to the tribunal days earlier.
Day’s barrister, Andrew Allen, told an employment appeal tribunal in February that Cocke went "in the middle of the night and destroyed them... because he was in a panic".
According to Allen, Cocke "had been observing the case and realised that key evidence had not been disclosed".
That Cocke "destroyed documentation potentially relevant to the litigation,” Allen argued, “is intimately tied up with" Day's concealment and detriment claims.
He added that there was a “failure to make findings” at the 2022 tribunal on the attempted destruction of electronic evidence.
Burns noted in his judgment that “although the employment tribunal has mentioned that it can draw adverse inferences… from the respondent’s deletion of documents, it doesn’t seem to have turned its mind to doing so.” He described Day’s patient safety disclosures as been of “the utmost importance”.
Allen also raised questions about LGT’s destruction of electronic records prior to the 2022 hearing.
"Documents had not been sought from key personnel,” he said, including from Janet Lynch – an ex-workforce and education director at the trust who, as its instructing client, had been responsible for advising the trust’s solicitors up until late 2018. “And key documents [including Lynch’s emails] were destroyed after she left the trust.”
Five trust directors’ emails – Travis, Cocke, Lynch, and two doctors involved with Day’s whistleblowing case – were either said to have been deleted or unavailable during the key dates being examined by the 2022 tribunal.
The hearing considered whether the trust had caused Day detriment linked to his whistleblowing. His appeal will examine whether public statements the trust issued about the settlement of a previous hearing did so.
The directors whose emails were unavailable at the 2022 tribunal are understood to have been involved in producing the statements, which drew criticism from the Care Quality Commission regulator.
The appeal hearing will not consider Day’s allegations of concealment. He has asked the tribunal to review its decision and applied for a further ground to be added.
Martin Nikel, an expert in e-discovery who heads Thomas Murray's cyber risk advisory e-discovery and litigation support practice, told Byline Times that a number of key questions regarding the emails’ status had not been answered by the tribunal or LGT.
"It's very irregular for a director of communications to have the ability to permanently delete emails without administrative privileges,” he said.
“When it's said that he deleted 90,000 emails, that's potentially a big task to undertake. In these scenarios, an end user without significant knowledge and access rights, would leave three potential sources of email, which could be explored to see if the email can be recovered.”
The NHSMail system, which LGT has confirmed was in use in 2022, usually retains emails for a minimum of 30 days and up to two years, Nikel said. A forensic discovery request or search of the Microsoft 365 environment could also establish the presence of the emails.
Nikel added that the way LGT board members were asked to provide evidence for the 2022 hearing was “unreliable” and explained that “it appears that board members were instructed to simply search their own emails".
“This is an obviously unreliable way to perform any collection of evidence in a neutral way," he said. "The NHS has processes in place for such situations – and organisations like the Counter Fraud Authority – that I am sure could provide better evidence-handling processes in such high-profile matters.
“Legal advisors could appoint external forensic experts, which if nothing else, would help with perception in future situations such as these.”
Robert Maddox, an employment lawyer with Doyle Clayton, told Byline Times that employment tribunals apply the same evidence to disclosure and preservation rules as the civil courts, but don't have “the same level of rigorous procedure that goes with a High Court matter”.
“For example, in the civil courts, a party can be obliged to complete a disclosure certificate of compliance confirming where they’ve searched, what they’ve searched for, confirming they’ve disclosed all relevant documents," he said.
“That’s not necessarily done in the tribunal. There is an obligation on parties to perform a reasonable search and to disclose any documents that are relevant, irrespective of whether they are favourable or adverse for a party’s case.
“But there certainly is an obligation to preserve documents and tribunals will look unfavourably on documents having been lost or destroyed.”
Maddox added that, although it is possible to enlist an IT expert to assess lost or deleted evidence, tribunals can take a party’s statements at face value.
It is more common for a party to make submissions on adverse inferences that can be drawn from missing, lost or deleted evidence, he said, rather than incur costs or risk further delays.
A LGT spokesperson acknowledged the outcome of the appeal hearing but declined to comment further "as legal proceedings are ongoing”.
LGT declined to say if Cocke still works at the trust and whether it paid his legal costs after he enlisted the services of a separate firm during the 2022 hearing. Travis remains the trust CEO.
‘The Northern Ireland Troubles Legacy Act is the Most Callous Form of Politicking by the UK Government’
The UK Government’s controversial Northern Ireland Troubles (Legacy and Reconciliation) Act has been dealt its first legal blow, with Belfast’s High Court ruling that legislation breaches a litany of legal obligations and international human rights standards.
The court found that sections of the Act breach Articles 2, 3 and 6 of the European Convention on Human Rights, Article 4 of the 1998 Human Rights Act, and section 2 of the Windsor Framework/Withdrawal Agreement.
Not for the first time, the Government has discarded its international obligations for temporary political gain – this time at the expense of victims and survivors of Northern Ireland’s 30-year conflict who have spent decades in pursuit of truth and justice.
To continue subjecting victims and survivors to further suffering through prolonged and arduous legal challenges amounts to the most callous forms of politicking.
The Legacy Bill received royal assent in September 2023, despite fierce opposition from all of Northern Ireland’s political parties, the Irish Government, victims groups and human rights bodies.
That the only support the UK Government managed to receive was from veterans’ groups is an unambiguous indication of the unfeigned purpose of this legislation: to protect the perpetrators, and more specifically, British armed forces, who have faced inquests and investigations into the murder of civilians during The Troubles.
The 2023 Act brings an end to investigations into Troubles-related incidents, blocking new civil claims, closing inquests, and preventing further police investigations.
More than 3,500 people were killed during the 30-year conflict, and 3,000 of those killings remain unsolved.
The main plank of the Act is a conditional amnesty for British security forces and paramilitaries for crimes they committed during the conflict.
Through the Independent Commission for Reconciliation, established under the Legacy Act, immunity must be granted if the commission believes the applicant for immunity has provided a truthful account to the best of their recollection – a process so inherently flawed, as highlighted by Judge Colton, that it is a wonder the Government and those who have subsequently attached their names to the commission ever thought it could stand.
Justice Colton concluded: “Immunity from prosecution provisions under section 19 of the (Northern Ireland Troubles) Act are in breach of the lead applicant's rights pursuant to Article 2 of the ECHR. I am also satisfied that they are in breach of Article 3 of the ECHR”.
The judge also declared that the immunity provisions were incompatible with the Windsor Framework agreement and added that "there is no evidence that the granting of immunity under the Act will in any way contribute to reconciliation in Northern Ireland. Indeed, the evidence is to the contrary”.
Judge Colton spent more than two hours reading the 200-page judgment which shredded the foundations of the flawed legislation. Despite this evidential ruling, Northern Ireland Secretary Chris Heaton Harris said that the Government “remains committed” to the implementation of the Legacy Act.
In bringing an end to inquests and investigations, the Government has sought to block access to justice for victims and survivors. Despite legal challenges, implementation of the Legacy Act is already having an effect.
The daughter of Patrick 'Patsy' Duffy – an IRA man who was shot 14 times by undercover soldiers in Derry in 1978 in what is believed to be the first shoot to kill killing – has been informed that the 2019 inquest into her father’s death will not continue.
Despite the severity and the scale of the killing across the region, the Ministry of Defence has just one person working on all Northern Ireland inquests, regardless of the deadline of 1 May this year set by the new legacy laws.
There are 28 legacy inquests currently in the judicial system assigned to either a judge or coroner. The majority of these inquests are unlikely to be concluded before 1 May.
It is widely expected that the UK Government will lodge an appeal to the High Court ruling, forcing the families who mounted this group legal challenge to face more lengthy legal proceedings.
Many consider this to be a political tactic – the longer this can be dragged through the courts, the more victims and campaigners will die before they have a chance to uncover the truth of what happened to their loved one.
Paddy Cassidy, Brid Kane, Jackie Nicholl, and Thomas McConville spent their lives seeking truth and justice, but ultimately passed away without ever having seen either.
Labour’s Shadow Northern Ireland Hilary Benn has said his party would repeal the Act and return to the principles of the Stormont House Agreement if they get the keys to Number 10 after the next election.
Stormont House was a multi-party agreement between the UK and Irish Government in 2014 which sought to address the legacy of the conflict. It was never fully implemented, and the UK’s subsequent Legacy Act is a unilateral departure from Stormont House.
As a result, the Irish Government has launched an interstate case against the UK at the European Court of Human Rights – only the second time that Dublin has taken the UK to court and the first such instance in more than 50 years.
Given the High Court judgement last week, the outcome of the interstate case appears fairly obvious. What is less obvious is why the Conservatives would continue on this legally-damned and morally repugnant path.
The Legacy Act is likely to be ripped up, whether through a future Labour government or the multitude of court cases – so why put victims and survivors through this ordeal? That’s a question that should haunt the Government.
If the Conservatives possessed any semblance of empathy, they would repeal the Act.
Emma DeSouza is an Irish writer, commentator and campaigner
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Surprise ‘People’s Assembly’ Comes to Court as Climate Protestors’ ‘Last Legal Defence’ May Be Removed
One of the last legal defences available to protestors accused of criminal damage in the UK is hanging in the balance following a hearing at the Court of Appeal.
A panel of three senior judges heard arguments in London yesterday about the kinds of defences that can be made in court and the extent to which judges or juries have the power to decide a case.
The hearing was sparked by a December request from Attorney General Victoria Prentis for a review of whether climate protestors can make the argument of 'consent’ in court.
While the hearing took place, members of campaign group Defend Our Juries held a surprise ‘people’s assembly’ inside the Royal Courts of Justice, to highlight what it argues was a “threat to British justice and democracy”. Spokesperson Tim Crosland dubbed the action a "makeover of British justice".
The gathering was prompted by the Attorney General’s application to reduce the defences available for those taking direct action over, for example, climate change or the war in Gaza.
Around 100 members of the public gallery are understood to have taken part. Organisers claimed the demonstration was “entirely lawful and peaceful, and [would] cause no disruption to the ordinary running of the court”.
Prentis had asked the court’s criminal division to consider whether “claims that protestors honestly believed organisations affected by their stunts would have consented to the damage – if they had known more about the impact of climate change – can be a defence in court”.
A mock-up of the Royal Courts protest on Wednesday (21 February)
She said the argument had been used by environmental campaign groups, resulting in acquittals for criminal damage. The previous month a jury cleared nine women of criminal damage for breaking the windows of HSBC’s headquarters in London.
The judge allowed them to argue that they truly believed HSBC’s shareholders would have agreed to their actions if they had known the scale of the climate crisis and the bank’s contribution to it.
While the request focuses on climate protest, similar arguments have recently been used by Palestine Action activists on trial for targeting Israel’s largest private weapons company.
Tom Little KC, representing the Attorney General, said the Government wanted clarity on the issue because the defence of belief in consent has only recently begun to be used and judges have responded inconsistently.
He argued that this provision in the UK’s Criminal Damage Act 1971 was being interpreted too broadly. He said it was not designed for protest cases but rather to, for example, protect someone who broke a car window to stop a dog overheating.
Henry Blaxland KC, representing a protestor at the centre of the issue who cannot be named for legal reasons, argued that there were no restrictions on using this defence in criminal damage cases, and the key issue at stake was whether the defendant really believed it. Whether this is accepted, he told the court, is ultimately a matter for the jury: “That belief may be mistaken… it may be unreasonable. But that’s the issue that needs to be determined.”
At stake, Blaxland continued, was the much bigger constitutional question of the right to a fair trial: “It’s only in rare cases that a court is entitled to withdraw matters that would otherwise be a matter for the jury.”
The move by the Attorney General echoes a previous referral by her predecessor Suella Braverman at the Court of Appeal. This followed a jury acquitting four Black Lives Matter protestors of criminal damage, for toppling a statue of slave trader Edward Colston in Bristol and throwing it into Bristol Harbour.
Braverman's request was made on the same day as a similarly-worded briefing was published by think tank Policy Exchange, which is part of international fossil fuel-funded Atlas Network.
The court subsequently ruled that protestors accused of high-value criminal damage could not rely on the European Convention on Human Rights, making it much more difficult for activists in such cases to mount a legal defence.
That decision was part of a wider restriction on the kinds of defences that protestors can use in court in recent years.
Last year, Extinction Rebellion co-founder Gail Bradbrook was found guilty of criminal damage and given a 15-month suspended prison sentence after being forbidden from speaking about her motivations in front of a jury.
Prentis stressed that, whatever the Court of Appeal’s latest decision, it would not change previous acquittals such as those for the HSBC activists. But it would affect future cases.
While the hearing was ongoing, trials of climate activists were happening across the UK.
Climate Clampdown
In one ongoing case, five Extinction Rebellion members have been charged with criminal damage for breaking windows at JPMorgan Chase’s London offices in September 2021. The bank is one of the world’s biggest financers of fossil fuels, and its asset management arm recently quit an international investor group set up to encourage companies to lower their carbon footprint.
This trial is being held at the Inner London Crown Court in front of judge Silas Reid, who has forbidden defendants in similar cases from mentioning climate change or fuel poverty in their defence.
Last year, Reid sentenced one of the current defendants in the JPMorgan case, Amy Pritchard, alongside two others, to prison for breaching this ruling during a previous trial. Pritchard spent three-and-a-half weeks in jail.
Reid has also faced criticism for his response to activists concerned about his approach. He led 68-year-old Trudi Warner to be prosecuted with contempt of court after she held a sign outside his court spelling out the right of a jury to acquit a defendant based on their conscience, sparking an escalating series of protests across the UK under the banner Defend Our Juries.
Reid delayed the start of the JPMorgan activists’ defence in case the Court of Appeal releases its decision later this week.
Another trial began at Reading Crown Court of eight Insulate Britain activists charged with public nuisance for blocking junction 31 of the M25 motorway in September 2021.
And a third trial is being held at Basildon Crown Court of five Just Stop Oil activists charged with public nuisance and conspiracy to cause a public nuisance for occupying tunnels near an oil terminal in Grays, Essex, in August 2022.
The UK’s approach to protest is now coming under international scrutiny.
In January, UN Special Rapporteur on Environmental Defenders and the Aarhus Convention, Michel Forst, expressed deep concern about the increasingly severe crackdown on peaceful protest, particularly some tough prison sentences. He said it was leading to increased threats, abuse, and state justification for severe measures against them, and having a “chilling effect” on free speech.
Additional reporting by Josiah Mortimer
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‘Julian Assange Is Not Superhuman – What Is Being Done to Him Is Unworthy of Any Democracy’
The wife of Julian Assange fears for the WikiLeaks founder’s life if he is extradited to the US as a hearing on charges of espionage looms.
Ahead of the hearing on 20 February, Assange's wife, Stella Assange, told Byline Times of her fears that he "will be sent to the very country that plotted to assassinate him in the UK" and "once extradited, he would be placed in some form of solitary confinement, conditions that would drive any person to take their life".
She said: “There is no prospect for a fair trial because he will be put on trial for exercising the democratic duty of informing the public of state-sanctioned criminality. The threat to his life is clear and present.
“Julian will be tried in the Eastern District of Virginia where the majority of jury pools either work or have relatives who work for government agencies, such as the FBI CIA NSA – the very agencies implicated in the plans to assassinate him.”
The Australian journalist has been imprisoned at Belmarsh prison in south-east London since April 2019. Depending on the hearing's outcome, he may be handed a 175-year sentence in the US if deported for exposing war crimes in the Afghan and Iraq Wars.
Assange is accused of publishing material provided by US Army whistleblower Chelsea Manning revealing torture, assassinations, the list of prisoners at Guantanamo Bay, and the US rules for air strikes.
Manning was pardoned by President Barack Obama and released in May 2017 after serving seven years in prison. The Obama administration decided not to pursue charges against Assange due to “the New York Times problem”. The advice was that there was no distinction between the publishing activities of WikiLeaks and that of the New York Times. Charges were then revived under President Donald Trump.
Since then, the 52-year-old has been confined to a high-security block in Belmarsh, separated from his wife – who he married in 2022 – and his two young children.
Previously, Assange was living at the Ecuadorian Embassy in London after being granted asylum to avoid extradition to America. There was an order to extricate him to Sweden, where he faced sexual assault accusations, but he was never charged and the case has since been dropped. Assange’s legal team feared that he would be inwardly extradited to the US if he went to Sweden.
He was then arrested in April 2019 by UK police at the embassy.
Stella Assange is alarmed by the conditions her husband faces if deported to the United States.
She told Byline Times: “No family can prepare for such a thing. The conditions under which he would be held in the USA amount to torture. The newly appointed United Nations Special Rapporteur on Torture recently put out a statement calling on the UK to release Julian and block extradition.
“Julian has been detained in one form or another since 2010. The US case carries a 175 years sentence. The message is: publish evidence of war crimes and corruption at the highest levels and you will be hounded and imprisoned.
"Julian is a strong man but he is not superhuman. What is being done to him is unworthy of any democracy.”
Assange has made an application to attend the hearing in person so he can communicate with his legal team but his wife said they have still not been informed if it will be granted.
His legal team argues that the case for extradition is politically motivated and has cited media reports of plans by the CIA to assassinate and kidnap Assange. It has also exposed the security firm previously employed to guard him as he sought refuge in the Ecuadorian Embassy for spying on him on behalf of the CIA and the illegal removal of Assange’s legal files from the embassy.
The two-day hearing is likely to be the final chance for Assange to escape deportation to America, where he will be committed to a high-security prison awaiting trial. There are fears that the extradition treaty it has with the UK could allow the US to add or amend charges which may expose Julian Assange to the death penalty.
“This is the last step in the UK courts," his wife said. "It will determine if Julian can have his appeal heard in the UK or if it is the end of the road in this country. If appeal is denied, he will attempt to take his case to the European Court of Human Rights. There is, however, a great worry concerning the climate around the UK Government’s adherence to the ECtHR.”
Supporters are calling the event ‘Global Day X: It’s Now or Never’ and are urging people to protest outside the Royal Courts of Justice. Demonstrations by civil society organisations in different parts of the country and in other parts of the world are also planned.
If it is successful, the US will have successfully used its 1917 Espionage Act against a journalist and publisher for the first time, prosecuted for obtaining or publishing US state secrets. Lawyers for Assange say that extradition would cross a new legal frontier and expose him to an unforeseeable extension of the criminal law.
Speaking from the European Parliament in Strasbourg, at the launch of an exhibition to highlight her husband’s status as the most awarded journalist on earth, Stella Assange added: “This case is an unprecedented abuse of the law to jail a journalist for committing journalism. Julian is being prosecuted for all the same reasons he has been awarded so many journalistic accolades. He is the most awarded journalist in history. The only way forward is for the charges to be dropped.”
The consequences for investigative journalism could be chilling and far-reaching, the WikiLeaks founder’s team argue. It believes it "will pose an existential threat to the free press as other countries will be able to argue that they too should be allowed to extradite journalists and publishers from the United Kingdom for breaking their censorship or secrecy laws”.
In the US, as a non-national, Assange would be ineligible to use the First Amendment (free speech) protection normally afforded to defendants.
“This is an unprecedented prosecution in relation to protected speech, which is a grave violation of freedom of speech under Article 10 of the ECHR and should stop the extradition,” his team has said.
“ECHR case law recognises the vital role that publishing state secrets can play in a democratic society and that criminal prosecution and conviction for such publications will deter the press from playing this ‘public watchdog’ role.”
Prince Harry Demands Piers Morgan Police Probe as ‘Shockingly Dishonest’ Mirror Pays Out Again Over Hacking
Prince Harry has won another big pay out to settle his phone-hacking case with the publisher of the Daily Mirror – and repeated calls for former Editor Piers Morgan to face criminal investigation.
It came as High Court judge Mr Justice said that Morgan’s former employers, Mirror Group Newspapers (MGN), has been “shockingly dishonest” for concealing endemic wrongdoing at its Daily Mirror, Sunday Mirror, and Sunday People tabloids between 1996 and 2011.
It follows a comprehensive courtroom victory for the Duke of Sussex in December in which Justice Fancourt found that there could be “no doubt” Mr Morgan – the Daily Mirror’s Editor from 1995 to 2004 – knew about his newspaper’s hacking and habitual unlawful use of private investigators.
On Friday, MGN agreed to pay the prince an undisclosed sum in respect of 115 articles over and above the £140,000 he received last year for distress and invasion of privacy relating to 15 other illegally-obtained stories.
During the trial, it was heard that MGN was spending up to £925,000 a year on illegal snooping, targeting thousands of people of interest to the editors of MGN’s three titles.
Lawyers for the prince read a statement outside court in which he claimed a famous win and – focusing on Morgan, who did not defend himself at trial but attacked the judgment from his doorstep – called for the “rule of law” to be upheld.
The prince said: “After our victory in December, Mirror Group have finally conceded the rest of my claim, which would have consisted of another two trials, additional evidence and 115 more articles.
"Everything we said was happening at Mirror Group was in fact happening, and indeed far worse as the court ruled in its extremely damning judgment.
“As the judge has said this morning, we have uncovered and proved the shockingly dishonest way the Mirror Group acted for many years and then sought to conceal the truth.
"In light of all this, we call again for the authorities to uphold the rule of law and to prove that no one is above it. That includes Mr Morgan, who as Editor, knew perfectly well what was going on, as the judge held.
“Even his own employer realised it simply could not call him as a witness of truth. His contempt for the court’s ruling and his continued attacks ever since demonstrate why it was so important to obtain a clear and detailed judgment.
“As I said back in December, our mission continues. I believe in the positive change it will bring for all of us. It is the very reason why I started this, and why I will continue to see it through to the end.”
In its most recent statement on the matter, given to Byline Times last week, the Metropolitan Police said it was continuing to consider the content of Justice Fancourt’s 386-page ruling before deciding whether to re-initiate criminal inquiries into Morgan.
Morgan was first interviewed in February 2014 over phone-hacking by Scotland Yard’s Operation Golding. Despite Golding’s discovery of significant evidence – and the prospect of securing multiple former staff as witnesses against the company – and heavy expenditure of public resources on Golding, former Director of Public Prosecutions Alison Saunders decided in 2015 that there was “insufficient” prospect of winning a conviction “in any” of 10 potential cases against MGN employees.
However, substantial evidence of criminal behaviour and cover up at MGN emerged last summer at trial during in which Justice Fancourt found endemic unlawful information gathering went on at MGN’s three national newspapers between 1996 and 2011.
At trial, former Mirror journalist Omid Scobie gave evidence that he heard Morgan being told a story about the singer and actress Kylie Minogue was sourced from a voicemail.
It also heard from former New Labour Downing Street Communications Director Alastair Campbell, who, according to the judge, gave “compelling evidence” that illegal techniques were used by the Mirror to obtain details of his mortgage.
In addition, Melanie Cantor, an agent and publicist for the presenter and columnist Ulrika Jonsson, said that Morgan “always seemed to be the first person to know about events that had recently happened” involving her clients, and that invoices and phone records demonstrated that she had been repeatedly hacked by Morgan’s Mirror reporters.
The judge concluded that “sensitive information… was passed to Mr Morgan, who must have known how it had been obtained”.
The judge ruled that other key MGN figures, some of whom now hold senior roles at other organisations, were aware or likely aware of illegal activity – including Richard Wallace, now Piers Morgan’s boss at Murdoch-owned TalkTV and Neil Wallis, former Editor of The People who in 2015 was acquitted of phone-hacking charges relating to his time as Deputy Editor at the News of the World.
Others include Morgan’s Mirror Deputy Editor Tina Weaver (for whom he advocated in 2001 to become Sunday Mirror editor), Morgan’s former Features Editor Mark Thomas, and Sunday Mirror and The People Senior Editors Nick Buckley and James Scott – the journalist who handed Morgan one of his biggest Mirror scoops hacked straight from the voicemails of former England football manager Sven Goran Eriksson and television presenter Ulrika Jonsson.
The Duke of Sussex's call for action from the authorities followed a bruising day for MGN in which it was ordered to meet the claimants’ costs of £1.9 million as they demonstrated that MGN had orchestrated a cover-up of illegality involving some former board members and the legal department, which the judge described as “shockingly dishonest”.
Justice Fancourt also rejected an application to appeal against his decision to apply limitation laws to some phone hacking cases – which give claimants a six-year countdown to bring legal action from the time at which they “reasonably” ought to have believed they had been wronged.
However, the matter, relating to the Duke’s co-claimants actress Nikki Sanderson and former wife of comedian Paul Whitehouse, Fiona Wightman, will now be referred to the Court of Appeal directly for a decision on whether the judge’s findings merit review.
Dan Evans is a former employee of MGN and a witness for the claimants in Sussex & Ors vs MGN Ltd
Ireland Takes UK Government to European Court Over Controversial Northern Ireland Legislation in Little-Noticed Move
In a move that has so far flown under the radar, Ireland has launched a legal challenge against the UK at the European Court of Human Rights (ECHR) over plans to grant immunity to those who committed murders and torture during The Troubles.
The case, launched on 19 January, targets the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 – marking a rare instance of a country directly challenging another's primary legislation on human rights grounds. It was spotted by legal writer David Allen Green.
The announcement was made quietly, through a tweet linking to a press release, but its implications could be far-reaching.
This action by Ireland reflects the strong links between the European Convention of Human Rights (ECHR) and the Good Friday Agreement, the landmark 1990s peace accord.
The ECHR is integral to this agreement as it provides both nationalists in Northern Ireland and the Irish Government with the means to uphold basic human rights standards, independent of the UK Parliament and government's influence.
Now, Ireland is arguing that the principle has been undermined by the green light given to acts of murder and torture through granting immunity to participants in The Troubles.
Before the Act’s passing last year, the Irish Times noted that all of the North’s five main political parties, as well as relatives of those bereaved by The Troubles and victims and survivors’ groups and human rights organisations, opposed the legislation. The United States and United Nations also condemned the bill.
The looming legal challenge comes as the Conservative-right steps up its rhetoric calling for the UK to withdraw from the ECHR. Allen Green argues that they are doing so without fully considering or discussing the potential impact on the Good Friday Agreement and the UK-Ireland relationship.
The legal action, an "inter-state" case, is an unusual form of legal challenge at the ECHR. Typically, cases before the court involve individual applicants against member states, rather than one member state confronting another. However, Ireland's decision to target the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 marks a direct confrontation with UK primary legislation.
Former Taoiseach Micheál Martin, now Deputy Head of the Irish Government, said: “I regret that we find ourselves in a position where such a choice had to be made."
He hit out at the UK Government pursuing legislation “unilaterally” rather than working with the Irish Government or cross-party on the island.
“The British Government removed the political option and has left us only this legal avenue," he said. "The incorporation of the European Convention on Human Rights into Northern Ireland law is a specific and fundamental requirement of the Good Friday Agreement. Since the UK legislation was first tabled, the Government have been consistent that it is not compatible with the Convention. I used every opportunity to make my concerns known, and urged the British Government to pause this legislation.”
Martin added that the provisions in the Act, which allow for the granting of immunity, have the effect of “shutting down existing avenues to truth and justice for historic cases, including inquests, police investigations, Police Ombudsman investigations, and civil actions”.
“Even in cases in which immunity is not granted, 'reviews’ by the proposed body, the Independent Commission for Reconciliation and Information Recovery (ICRIR) are not an adequate substitute for police investigations, carried out independently, adequately, and with sufficient participation of next of kin,” he added.
The Irish Government’s case is that Westminster’s NI Troubles Act stands in direct opposition to key human rights principles in potentially sanctioning atrocities.
But in a statement at the end of 2023, when it became clear the Irish Government would bring such a case, Westminster’s Northern Ireland Secretary Chris Heaton-Harris MP said that the UK Government “profoundly regrets” the decision taken by the Irish Government, which he branded “unnecessary”.
“The decision comes at a particularly sensitive time in Northern Ireland," he said. "The UK Government urged the Irish Government, before considering action, to engage directly with the [Reconciliation] Commission to understand better its plans for the implementation of the legislation.”
And he dismissed the Irish Government’s referral to the Stormont House Agreement, claiming that “the reality is that there was no cross-party consensus or agreement to the practical implementation and out-workings of that agreement".
He said the Irish Government’s case was undermined by the fact that “at no time since 1998 has there been any concerted or sustained attempt on the part of the Irish state to pursue a criminal investigation and prosecution-based approach to the past”.
Successive UK and Irish governments during the peace process “worked closely together on a range of initiatives which have provided conditional immunity and early release from prison,” he added.
Should the Strasbourg Court find that the UK has violated the ECHR with this primary legislation, the political fall-out could be significant.
While the ECHR cannot nullify an Act of Parliament, a ruling against the UK would expect the Government to undertake remedial action – a prospect that would likely spark considerable controversy within the Conservative Party.
This case is unlikely to be resolved quickly, with a judgment likely not due for three to four years from now – making it potentially a problem for a future Labour government. But it could become a fiery political debate in the meantime.
Ireland’s Case: The ECHR Summary
“The application concerns [the UK’s] Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which was signed into law on 18 September 2023. The stated purposes of the Act are to address the legacy of the Troubles – a conflict in Northern Ireland that lasted from the late 1960s to 1998 – and promote reconciliation.
“The Irish Government argues that certain provisions of the Act are not compatible with the European Convention. They rely on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 6 (right to a fair trial), 13 (right to an effective remedy), and 14 (prohibition of discrimination).
“The Irish Government alleges, in particular, that sections…of the Act guarantee immunity from prosecution for Troubles-related offences, provided that certain conditions are met, contrary to Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment) of the Convention.
“[In addition] Parts 2 and 3 of the Act replace current mechanisms for information recovery with respect to Troubles-related offences (including police investigations and coronial inquests) with a review by a newly-established Independent Commission for Reconciliation and Information Recovery, contrary to Articles 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 13 (right to an effective remedy).
“[The Irish Government also argues] that section 43 of the Act prevents both the initiation of new Troubles-related civil actions before the courts and the continuation of civil actions not commenced before 17 May 2022, contrary to Article 6 (right to a fair trial) read alone and in conjunction with Article 14 of the Convention (prohibition of discrimination).”
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