Rights and wrongs
No knots and the extraordinary allegation of an attempted Mennonite kidnapping
Article 8 of the human rights convention does not prevent the United Kingdom from expelling foreign criminals, a former president of the European Court of Human Rights said at the weekend.
Robert Spano was responding to a call from the Times columnist Sebastian Payne last month for the UK to repeal the Human Rights Act 1998 and withdraw from the European convention
Payne commented that “either we continue to accept the convention as it is, making it almost impossible to secure our borders, or we leave”.
He reported:
At least three former home secretaries whisper in private that they now believe departure from the European Convention on Human Rights is the only way to solve the Gordian knot of foreign criminals. Boris Johnson and Sunak are two former prime ministers who have come to the same conclusion.
But Spano, now a partner at the international law firm Gibson Dunn, said a state such as the UK “has all the tools at its disposal to aggressively enforce a practice of expelling foreign criminals if it so desires”.
In fact, he continued,
national law can proceed on the basis that this should and must be the general rule and that only very exceptional circumstances can lead to a different conclusion.
The core issue will remain the clarity and foreseeability of national immigration legislation, the robustness and consistency of the UK’s judicial and enforcement machinery and the availability and receptiveness of the state of origin to accept the foreigner back on its soil.
The former judge warmly endorsed a recent explainer published by the think tank UK in a Changing Europe.
This says:
The European Convention on Human Rights does not provide a right for people to enter or remain in a country of which they are not a national, or a right to claim asylum. The European Court of Human Rights has frequently said that it is for states to control the entry and residence of foreign nationals and that they have the power to deport foreign nationals convicted of criminal offences.
Very exceptionally, however, in individual cases a person may be able to challenge their removal on human rights grounds under article 3 of the European Convention on Human Rights if, for example, there is a serious risk that they may be tortured in the country to which they would be sent; or under article 8 if, for example, they have children who are entirely dependent on them.
Tomorrow, the human rights court will rule on two cases brought against the UK government. The first involves article 8. The second involves what a Scottish court has described as extraordinary allegations.
AR v UK
On 21 January 2011, a man from Rochdale who was then aged nearly 33 was acquitted of rape at Bolton Crown Court. Now known only as AR, the defendant was a married man with children, of previous good character, and a qualified teacher. His identity is protected by a court order.
In November 2009, while he was working as a taxi-driver, he was alleged to have raped a 17-year-old woman passenger. His defence was that there had never been sexual contact with the alleged victim.
Both he and the complainant gave evidence and were cross-examined at the trial. There was no scientific evidence to support or undermine the allegation.
After his acquittal, he applied for a job as a lecturer. He needed an enhanced criminal record certificate. When it arrived it included a note from Greater Manchester Police, referring to his acquittal and disclosing these details:
Upon interview he stated that the female had been a passenger in his taxi, but denied having sex with her, claiming that she had made sexual advances towards him which he had rejected.
AR objected. He said:
The jury rejected the complainant’s evidence and the disclosure of the allegation is so prejudicial as to prevent me from being fairly considered for employment. Even if the disclosure of the allegation was possibly appropriate the disclosure fails to provide a full account of the evidence given and how the jury came to its conclusion.
It is wrong, unfair and grossly prejudicial [that] I should have to defend myself every time I apply for employment after the jury have ruled I am an innocent man.
In 2012, AR applied for judicial review of the police decision. Sitting in the High Court, Judge Raynor QC dismissed AR’s challenge on the ground that the police disclosure was a proportionate interference with his rights.
AR appealed unsuccessfully to the Court of Appeal in 2016. A further appeal was dismissed by the Supreme Court in 2018 — though Lord Carnwath raised concerns about the value of disclosing allegations that had been tested in court and had led to an acquittal.
AR complained to the human rights court that the certificate violated his presumption of innocence under article 6 of the convention. He also complained under article 8 — the right to private life — that the law did not offer sufficient protection against arbitrariness. There was no guidance as to when the disclosure of an acquittal was proportionate or how such information should be used by a prospective employer.
The disclosure was not necessary, he argued, because it was likely to have a profound impact on his employment prospects. It stigmatised him as an unconvicted person, it was made on the basis of an inadequate evaluation of the allegations and there were insufficient safeguards against abuse.
Hayes, Amnott and Reburn v UK
“The crimes which the appellants have allegedly committed are extraordinary,” Lord Carloway, the lord justice general, was moved to say in 2022.
Valerie Perfect Hayes, Jennifer Lynn Amnott and Gary Blake Reburn are US citizens who were born in 1980, 1985 and 1963 respectively. They fled to Scotland after an alleged attempted kidnapping of five children under the age of eight in a Mennonite community in Dayton, Virginia.
The US wants to put them on trial. Extradition was approved by the sheriff court in 2021 and by the High Court of Justiciary in 2022.
In their application to the human rights court, the three fugitives argue that, if convicted, they would receive mandatory sentences of life imprisonment without parole. That, they say, would be inconsistent with article 3 of the human rights convention, which bans inhuman or degrading treatment or punishment. The UK agreed not to extradite them while their claims were being considered by the Strasbourg court.
Prosecutors said that Amnott and her husband Frank Jesse Amnott were desperate to start a family, having had several failed pregnancies. Valerie Hayes met them in 2015 and told them she had three children who had been “captured” and were in the custody of two Mennonite families in west Virginia. She told the Amnotts that if they helped her to recover her children they could keep one of the Mennonite families’ other two children.
Reburn was Hayes’s boyfriend and together the two couples allegedly formed a plan which involved carrying out surveillance on the houses of the two Mennonite families; obtaining firearms; achieving armed entry to the two houses; securing the five children; and murdering their four parents by shooting them in the head.
On 28 July 2018 Hayes, Reburn and Frank Amnott travelled from Maryland to Virginia, while Jennifer Amnott remained in Maryland with Hayes’s other children. On 29 July 2018, Hayes, Reburn and Frank Amnott entered the home of the first Mennonite family while they were at church to familiarise themselves with the layout. They returned after dark, with Reburn and Amnott carrying firearms, and forced their way inside the house.
The Mennonite father was tied up in the basement. His wife grabbed a cordless phone, escaped from the house and called the police. Officers found Amnott holding the father at gunpoint. He was arrested without incident.
Hayes and Reburn managed to flee to Scotland with Jennifer Amnott, who had three children in foster care there.
Frank Amnott pleaded guilty to conspiracy to commit kidnapping, conspiracy to kill witnesses and a firearms offence. He has not yet been sentenced — perhaps because prosecutors are waiting to see whether he gives evidence against the other defendants.
Update 1 July: AR was successful. The court found a breach of article 8. No award of damages was made but the government was ordered to pay €25,000 towards his legal costs.
Referring to later developments, the court said:
While these subsequent changes may lead to a different conclusion in a future case, they cannot affect the court’s finding that, at the relevant time in 2011 and 2012, the disclosure of information concerning allegations of which the applicant was acquitted was not in accordance with the law.
There was no breach in the Hayes extradition case. However, the interim measures will remain in place until the decision is finalised or until further notice.