Nearly Legal

Another day, another case, another set of screaming tabloid headlines accusing the Human Rights Act of being the criminal’s charter, another promise from Little Lord Fauntleroy to ‘repeal the Human Rights Act and bring in a British bill of rights’.

The whole frenzy around the Asylum and Immigration Tribunal’s decision in respect of the post-sentence deportation of Learco Chindamo, who murdered the teacher Philip Lawrence, is all too familiar, and the whole pack are now so busy feeding off their self-created myths that it is probably futile to try to raise some facts and reason in response. Nevertheless, I shall try.

First because easiest, Cameron’s promise to abolish the HRA. Many people have pointed out that a) this is incredibly stupid because b) it won’t happen. Unless the compassionate face of Etonianism intents to withdraw the UK from the European Convention on Human Rights, the ECHR will always trump any local decisions on rights. If the UK wants to withdraw from the ECHR, it will have to withdraw from the EU, the EEA and some other treaties altogether. It is simply not credible that this will happen just so that Dave can introduce a bill of rights saying that everybody has rights except bad people. It simply ain’t going to happen. Cameron knows this and is just practicing the worst form of soundbite deceitfulness, or rather flat out lying.

Second, the Asylum and Immigration Tribunal did not decide this case on Article 8 grounds. The basis for the decision was the European Citizenship Directive of 2004, specifically that an EU national shall not be deported from another EU country in which s/he has been resident for at least 10 years except on grounds of “imperative grounds of public security”. The Tribunal found that the Home Office’s arguments on the level of risk were not supported by the evidence and that the Home Office argument that time in prison did not count towards the 10 years found no support in the Directive, which made no such distinction. Chindamo had only spent 9 years in the UK before conviction and sentence.

Third, the Tribunal accepted that Chindamo’s Article 8 rights were an issue, but a secondary one, not decisive for its finding. However, it indicates it would have found on this argument.

In sum, this was not a case decided on the basis of the HRA, and the HRA is not going to be abolished.

That is the fact part out of the way. Now a rather more tentative exercise of reason.

As a hypothetical, assume the decision was made on the basis of the Art 8 right to family life argument. It is worth noting that Chindamo has no family in Italy, his father being on the run somewhere, or in prison. Chindamo does not speak Italian and his mother and brothers are resident in the UK. (Apparently the Home Office argued that Italy wasn’t far from the UK, so that this would not amount to a breach of Art 8. The Easyjet argument, we could call it, except it didn’t fly).

What is the objection to this hypothetical finding? The tabloid press response seems to be a confused morass of ‘it isn’t justice’ (why? He was convicted and sentenced), ‘we won’t be safe/he should stay in prison’ (a parole issue, not a human rights issue), ‘he hasn’t been punished enough’ (a sentencing issue, not a human rights issue, and also suggesting that deportation to Italy is a punishment), ‘it is an insult to the victim’s family’ (which I’ll try to respond to below), ‘it is against commonsense’ (ah yes, the appeal to common sense, last refuge of the scoundrel). None of it makes sense and none of it has anything to do with the Human Rights Act.

As something of an aside, look at it this way. If Chindamo is released, and it is still a big if – widely overlooked – there were two options available before the Tribunal decision:

1. He presents a grave risk to the public so he is deported to Italy, where there are no supervision, no probation and no licence conditions on him. Presumably, deportation to Italy is taken as a punishment for him and the Italian public can bear the risk.

2. He doesn’t present a grave risk so he is released on licence and very likely with tight supervision conditions in the UK. Any small breach of licence conditions see him returned to prison.

In terms of the safety of others, it seems clear that option 2 is preferable. Because this co-incides with Chinmado remaining in the UK with his family, however, this is seen as the law ‘being on his side’.

Lastly, the effect of the decision on the victim’s family. I didn’t hear the interview with Frances Lawrence, Philip Lawrence’s widow, on Radio 4. She has been widely reported as saying:

That the voices of ordinary people don’t become part of the equation when these laws are considered. The law is not always what must be our context. Humanity is more important . . . People feel their needs and desires are second-place, squashed by some bureaucratic insensate law.

and that she is devasted and demoralised. However, Frances Lawrence, a supporter of the Human Rights Act, also had the strength to say “If I was one of the three judges, I would have come to the same decision.” (on the assumption it was based on Art 8). What is clear is that she was told at an early stage that Chindamo would be deported and that this has therefore been an expectation on her part for a long time.

One might well say it was irresponsible of whoever it was to give her such an assurance. Her sense of having been betrayed is fully understandable. But her distress was articulated with a clear awareness of the contradictions between intellect and feeling, between reasoned views and visceral responses. Not so nuanced is the tabloid use and abuse of her distress, of course.

I have great sympathy for Frances Lawrence, who finds herself, as many do, facing the law’s inability to satisfy an individual’s sense of and need for a personal justice. This issue will not go away. It is inevitable as long as we have Law. The law should recognise the individual’s situation, and even respond to it, but it cannot be shaped by it or tailor itself to it. At that point, it ceases to be law and becomes an artibrary system of revenge and retribution based upon nothing but sympathy and fear.

Frances Lawrence also said that when people like her:

speak of morality, we are derided. When we speak of the relationship between rights and responsibilities we are held in contempt.

With this, I must confess, I have less sympathy. I think there is a confusion about whose rights and whose responsibilities are involved in the Human Rights Act and ECHR.

What is set out in the ECHR is basic set of individual rights that the State shall not interfere with, ignore or abuse. It is therefore precisely about responsibilities – the basic responsibilities of the State to the citizens not to abuse its power.

And we should be clear that those responsibilities are owed to all who live under that State. If we start to remove ‘rights’ from any class of people, or tie them to ‘being decent’, then the link between rights and responsibility is indeed being lost. The State is thereby being excused its basic responsibilities to those with ‘lesser’ human rights. Human Rights apply to all under the State or they are nothing.

Now, a forlorn hope, can we have no more of this nonsense?

[Edit. Head of Legal has an interesting post on the EU directive concerned. Jailhouse Lawyer has extensive coverage of the case and media and politicians' responses.]