In October 2009 Cheryl Cole, Alexander Burke and Chipmunk were topping the charts, Barbra Windsor announced that she was leaving EastEnders after 15 years and Arti, the oldest skeleton of a human ancestor was found in Ethiopia.

But if all of that didn’t distract you too much you may of noticed that the Supreme Court began its work as the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. Replacing the Appellate Committee of the House of Lords as the highest court in the United Kingdom. The Supreme Court hears cases of the greatest public or constitutional importance affecting the whole population.

Over the past ten years the Supreme Court has made judgements on cases that are really important to our human rights here in the UK. We’ve picked a few of the most important to our work at BIHR below.

 

The Cheshire West Case

The Cheshire West judgement was made in 2014. The case was about the Right to Liberty (Article 5) and concerned three people, including two sisters, each living with learning disabilities and different kinds of needs. It has been determined that each of the three people lacked capacity to make decisions about their care and treatment, and all three were living in different care settings. The adequacy of their care was not an issue, however there was concern about the fact that each person was under continuous supervision and could not (or would not be allowed) to leave on their own accord.

In this judgement, the Supreme Court introduced the ‘acid test’ to work out when there has been a deprivation of liberty in a care setting. The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. The following are not relevant:

(a) the person's compliance or lack of objection;

(b) the relative normality of the placement (whatever the comparison made); and

(c) the reason or purpose behind a particular placement.

Essentially, if a person is subject to continuous supervision and control and not free to leave they are being deprived their right to liberty. This means the relevant procedures, here the Deprivation of Liberty Safeguards (DoLS) (soon to be replaced by the Liberty Protection Safeguards) need to be implemented to protect their rights.

We do a lot of work around mental health and mental capacity, and all too often people with mental health and/or mental capacity issues are seen as not having the same rights as other people. This is why the Cheshire West judgment is so important. It is about ensuring equality of people and ensuring that restrictions of their rights are lawful.

DSD and another

In 2018, the Supreme Court ruled that the police have a duty to investigate properly reported crimes of serious violence. In this case, two victims of John Worboys (the black cab driver responsible for a large number of sexual offences) reported their attacks to the police in 2003 and 2007. However, the police did not investigate the attacks properly and Worboys was able to continue attacking women until 2009. By failing to undertake a proper investigation, the women were exposed to inhuman and degrading treatment (Article 3).

This case is crucial because it shows that even when crimes are committed by a private citizen, the state can still be held to account. It is not enough to simply have the right processes and policies in place, failures in investigations can also breach the law. 

We have worked with women’s groups to support them to use the positive obligation to protect against inhumane and degrading treatment by criminal justice agencies. Next month we are going to launch a new project in this area so watch this space!

 

The Rabone Case

A 24 year old woman, Melanie Rabone, was admitted to a hospital as a voluntary patient following an attempt at taking her own life. Melanie was assessed as being at high risk of suicide. Less than two weeks after being admitted, Melanie requested home leave. The hospital allowed her home leave for two days and two nights. The following day, while on leave, she took her own life.

The Supreme Court ruled that the hospital had failed in their duty to protect her right to life (Article 2). The hospital had a duty to take reasonable steps to protect Melanie’s life, including by detaining her under the Mental Health Act to try and prevent her suicide.

We work with hospitals and care providers to increase staff awareness of their responsibilities and duties under the Human Rights Act, enabling them able to take proactive steps to protect people.

 

R v SSHD (Criminal Record Checks)

In January of this year the Supreme Court ruled that the UK’s criminal records disclosure scheme (DBS) is incompatible with the right to a private and family life (Article 8). This case involved three people who had committed minor offences in the past. Under the DBS scheme had to disclosure their criminal records, making it difficult for them to obtain employment

For example, one woman received a caution for the theft of a sandwich from a shop. In the same year, she was convicted of the theft of a book worth 99p and of failing to surrender to the bail granted to her after her arrest for that offence. At the time of the offences, P was 28 years old, homeless and suffering from undiagnosed schizophrenia which is now under control. She has since qualified to work as a teaching assistant but had not been able to find employment. She believed this was due to her disclosure obligations.

The court found that two aspects of the criminal records disclosure scheme were disproportionate and in breach of the right to private and family life; the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely.



A Culture of Respect for Human Rights

We refer to all of these cases all the time in our work. But human rights are not just a matter for the Courts. One of the aims of the Human Rights Act was to help support a “culture of respect for human rights”. This is about the way all public services and policy happens, not simply about court judgements. Court judgement are vital but if a judgement is happening, it means that things have already failed.

Embedding a human rights approach which is based on fulfilling human rights duties means not breaching rights, and managing the risks so that positive action is taken to protect rights. The real value of a human rights approach is that is becomes the frame through which we understand what has gone wrong, how to fix it and how to prevent such things happening in the first place. For example, can read our blog on the need for human rights in commissioning here.

From our experience working with communities, advocates, self-advocates and organisations we know that human rights can be used tool to improve lives and organisations. Check out our Changing Lives stories  and Transforming Organisations stories to see how human rights can be used outside of the courtroom to create real change in people’s lives.


Do you #KnowYourHumanRights?

Our new online advocacy tool supports people to know when their human rights may be at risk in mental health and mental capacity services, and how to use the law to resolve these issues in everyday discussions with staff.

 

 You can access the tool here.