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Article Five
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seems that article five now takes precedence over being imprisoned.
we jail people for indeterminate terms in the UK don't we? so why is ian Watkins still in prison, doesn't he have a right to liberty and security?
seems that article five now takes precedence over being imprisoned.
we jail people for indeterminate terms in the UK don't we? so why is ian Watkins still in prison, doesn't he have a right to liberty and security?
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I'm unsure how one can use a general 'right to liberty' to avoid returning a prisoner back to a country to face its justice.
By most (I would hope) definitions of a right to liberty, it is going to relate only to those who have not transgressed. Guilty parties are expected to lose their liberty and serve a term in gaol.
For sure indeterminate periods need to be justified on a case by case basis, we can not have corrupt authorities simply slinging folk in gaol permanently, willy nilly, but it was my (presumably flawed ) understanding that we refused a legitimate request for extradition based on a right to life, rather than the possibility of being incarcerated for a while. To set someone free (on bail) whilst technicalities are being sorted out, allowing an escape, seems the height of folly. I'm unsure anyone facing an indeterminate period in a US gaol is going to be certain of returning for the decision.
By most (I would hope) definitions of a right to liberty, it is going to relate only to those who have not transgressed. Guilty parties are expected to lose their liberty and serve a term in gaol.
For sure indeterminate periods need to be justified on a case by case basis, we can not have corrupt authorities simply slinging folk in gaol permanently, willy nilly, but it was my (presumably flawed ) understanding that we refused a legitimate request for extradition based on a right to life, rather than the possibility of being incarcerated for a while. To set someone free (on bail) whilst technicalities are being sorted out, allowing an escape, seems the height of folly. I'm unsure anyone facing an indeterminate period in a US gaol is going to be certain of returning for the decision.
I suppose the point is that, since he is innocent until proven guilty, that right still applies. He may be wanted for child rape but that doesn't mean he did it (although going on the run is suggestive).
All the same, I think extradition to face crimes committed overseas ought to be much less of a problem. Especially to places such as the US, Canada, mainland Europe, etc., where the right to a fair trial is as deeply ingrained as it is here. This judgement confuses me -- not least because even the terms of his bail would seem to imply breaching the right to liberty. No passport? 12 hour curfew? Why is that any less free than facing trial for a crime which he may, or may not, have committed, but for which justice should be done?
All the same, I think extradition to face crimes committed overseas ought to be much less of a problem. Especially to places such as the US, Canada, mainland Europe, etc., where the right to a fair trial is as deeply ingrained as it is here. This judgement confuses me -- not least because even the terms of his bail would seem to imply breaching the right to liberty. No passport? 12 hour curfew? Why is that any less free than facing trial for a crime which he may, or may not, have committed, but for which justice should be done?
I assume the DJ was simply ruling on whether bail could be granted or not and if so her remarks about Article 5 were not appropriate. All she had to do was decide whether he posed a risk of absconding, interfering with justice or committing further crimes.
She made that decision (which seems a little perverse as she said that whilst he remains in custody for the time being he could be released if a surety of £10,000 was lodged. He has already absconded from a US court where a surety of $10,000 had been lodged).
Her remarks about Article 5 were not only misplaced but also arguably wrong. Unless, that is, the Human Rights Act and the European Convention on Human Rights is now to view lawful imprisonment as a contravention of their terms.
She made that decision (which seems a little perverse as she said that whilst he remains in custody for the time being he could be released if a surety of £10,000 was lodged. He has already absconded from a US court where a surety of $10,000 had been lodged).
Her remarks about Article 5 were not only misplaced but also arguably wrong. Unless, that is, the Human Rights Act and the European Convention on Human Rights is now to view lawful imprisonment as a contravention of their terms.
Actually, Jim, the matter is not quite as I imagined. I've just read a report in a more reliable organ. I assumed that the good doctor had appeared before Westminster Magistrates’ Court simply for a bail hearing. In fact he had appeared there before the Immigration and Asylum court to have his appeal against extradition heard (that court sits predominantly in the building that is Westminster Magistrates’ Court).
The hearing was, in fact, a full hearing and the result is final (bar any appeals from either the Home Office or the US Authorities). District Judge Rose and her colleagues were indeed entitled to rule on the matter in relation to Article 5. For information, Article 5 says this:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
[There are three or four other provisions which are not relevant here]
It seems that Mr Bowen was charged with rape and other criminal sex acts in March 2010. He subsequently absconded from those proceedings. To me the provisions of Article 5 (b) and (c) are sufficient for the qualified right to liberty to be overridden. It says nothing about the length of likely sentence being an influencing factor. DJ Rose has taken it on herself to suggest that the likely sentence in the US amounts to a breach of Mr Bowen’s (qualified) right to freedom. The goalposts seem to have been arbitrarily shifted and I think that is outrageous.
The hearing was, in fact, a full hearing and the result is final (bar any appeals from either the Home Office or the US Authorities). District Judge Rose and her colleagues were indeed entitled to rule on the matter in relation to Article 5. For information, Article 5 says this:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
[There are three or four other provisions which are not relevant here]
It seems that Mr Bowen was charged with rape and other criminal sex acts in March 2010. He subsequently absconded from those proceedings. To me the provisions of Article 5 (b) and (c) are sufficient for the qualified right to liberty to be overridden. It says nothing about the length of likely sentence being an influencing factor. DJ Rose has taken it on herself to suggest that the likely sentence in the US amounts to a breach of Mr Bowen’s (qualified) right to freedom. The goalposts seem to have been arbitrarily shifted and I think that is outrageous.
Thanks for the information. When you say "final (barring appeals)" does that translate into the case going through the various rungs of the justice system? I would have thought that this is what would happen, since i would be amazed if there was no appeal.
I'm all for Human Rights, and in particular that they should apply to everyone as far as possible, but this decision seems seriously bizarre. He's not even been found guilty, and the sentence therefore hasn't been set; denying a chance of trial on the grounds of "what might happen if something else were to happen" doesn't seem to be justice to me.
If there were evidence that he would not get a fair trial, then fair enough, but the ruling made clear that this wasn't a factor. Very bizarre.
I'm all for Human Rights, and in particular that they should apply to everyone as far as possible, but this decision seems seriously bizarre. He's not even been found guilty, and the sentence therefore hasn't been set; denying a chance of trial on the grounds of "what might happen if something else were to happen" doesn't seem to be justice to me.
If there were evidence that he would not get a fair trial, then fair enough, but the ruling made clear that this wasn't a factor. Very bizarre.
Not my area of expertise, Jim, but the reports I have read suggest that the US authorities are to appeal this decision. Much reference is made in the reports that the decision was made by a Magistrates’ Court. In fact it was made by an immigration tribunal who happened to be sitting in a building known as a Magistrates’ Court. (Westminster Magistrates’ Court hosts virtually all such cases). The District Judge was not sitting in the capacity of DJ (Magistrates’ Court) and such matters do not come before a Magistrates’ Court.
Like you I am completely perplexed by this decision. The DJ specifically said that Mr Bowen’s Human Rights would not be breached under Article 6 (Right to a Fair Trial) or Article 10 (Freedom of Expression, though I’m not sure how that is relevant). She specifically said it was Article 5 upon which the appeal was allowed. In my understanding this means effectively that the court did not agree that the US judicial system, which may result in lengthy prison sentences for serious crimes, was a “competent legal authority” before which Mr. Bowen should stand.
Like you I am completely perplexed by this decision. The DJ specifically said that Mr Bowen’s Human Rights would not be breached under Article 6 (Right to a Fair Trial) or Article 10 (Freedom of Expression, though I’m not sure how that is relevant). She specifically said it was Article 5 upon which the appeal was allowed. In my understanding this means effectively that the court did not agree that the US judicial system, which may result in lengthy prison sentences for serious crimes, was a “competent legal authority” before which Mr. Bowen should stand.
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