User:Dolemite1980/sandbox

Ben Emmerson QC: Background Information
Ben Emmerson QC (48) is an international lawyer, specialising in European human rights law, public international law and international criminal law. He was a founder member of Matrix Chambers in London and has 25 years’ experience litigating before international courts and tribunals including the International Court of Justice, the European Court of Human Rights, the European Court of Justice, the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia. Within the United Kingdom he is a deputy High Court Judge, a Master of the Bench of Middle Temple and an Honorary Fellow of Mansfield College, Oxford.

Emmerson is a patron of the Children’s Rights Alliance for England (CRAE), a member of the Advisory Board of the British Institute of Human Rights, and a former trustee of the Redress Trust (a charity campaigning for legal redress on behalf of victims of torture worldwide).

Current and previous international appointments
Emmerson is currently the British judge on the Residual Mechanism of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia1.

He has previously acted as Special Adviser to the Prosecutor at the International Criminal Court and Special Adviser to the international judges of the UN backed Khymer Rouge Tribunal in Cambodia.

In June 2011 he was elected by the UN Human Rights Council as UN Special Rapporteur on Counter Terrorism and Human Rights. In this capacity he reports annually to the UN General Assembly, the UN Human Rights Council and relevant entities established by the Security Council. He also conducts country visits and reports, and provides technical and other advice to States.

On accepting the mandate as Special Rapporteur he said:

“Far too often international law and human rights standards are seen as incompatible with effective counter terrorism. The reverse is true. In order to be truly effective, counter terrorist strategies must command the support of the international community and need to be implemented in a way that is compatible with internationally agreed minimum standards. There is a great deal for the UN to do in this field.”

In his first major speech to the UN General Assembly last October he surprised some campaigners by announcing that he intended to promote a charter protecting the rights of victims of terrorism (including rights to effective protection, investigation and compensation) in recognition of the fact that acts of terrorism must be classified as gross human rights violations. He recently co-authored an article with the Danish Foreign Minister and the EU Counter-Terrorism Co-ordinator to mark the European Union Day of Remembrance of all victims of terrorist attacks in Europe and elsewhere in the world.

His next report to the General Assembly, expected in the autumn, will focus on the use of accountability for the involvement of public officials for human rights violations in State counter-terrorism strategies. He is also responsible for monitoring States’ responses to a joint UN study into the use of secret detention facilities.

Publications and policy work
Emmerson has written and lectured widely on the European Convention on Human Rights and the Human Rights Act 1998. He was formerly the editor of the European Human Rights Law Review and is co-author, with Professor Andrew Ashworth QC of the leading text on the application of the Convention in criminal cases (Human Rights and Criminal Justice, Sweet & Maxwell, 2nd Edn). Since 1995 he has been human rights editor of Archbold Criminal Pleading, Evidence and Practice (Sweet & Maxwell), the criminal practitioner's bible.

When the Human Rights Act was passed in 1998 Emmerson acted as legal adviser to the Lord Chancellor’s Department on the implications of the legislation in criminal cases, and was appointed by the Judicial Studies Board to devise and deliver compulsory training to British judges in the principles of the European Convention. He was also adviser on human rights to the Law Commission in its report on reform of the law of double jeopardy in light of the findings of the Stephen Lawrence Inquiry.

Reform of the Court
Emmerson has a reputation as a strong defender of the Strasbourg Court. He supports the introduction of the procedural and other changes agreed at the Brighton conference in April to enable the Court to deal effectively with the huge backlog in its caseload and to focus its limited resources on the most serious violations of the Convention. During a BBC Newsnight debate about the UK’s relationship with the Strasbourg Court, in February 2011, he also called for Member States of the Council of Europe to increase their financial contributions to the budget of the Court in order to tackle the backlog of cases and shorten delays in processing applications.

He has written in defence of the British judiciary’s decision-making under the Human Rights Act 1998. In an article published in the Independent newspaper last year he wrote:

“The overwhelming majority of the senior judiciary have been working constructively with the Human Rights Act to strike a sensible balance and to build a credible body of British human rights jurisprudence. They have handed down judgments which have influenced the ECHR. Where necessary, they have declined to follow the judgments of the Court in Strasbourg, or have adapted them to our own legal values, as they are perfectly entitled to do. Exaggerated attacks on the legitimacy of the ECHR have the potential to undermine that careful work and risk upsetting the balance of mutual respect that has been gently developing between the national and international courts, working in partnership.”

Career at the Bar
In his career as a barrister Emmerson specialised in cases involving human rights, international humanitarian law, criminal law, and public law. He has been described as “one of the ten best silks in the country” and “a leading presence in the field of human rights” (Chambers & Partners Directory).

He has conducted more than 30 cases as an advocate appearing before the European Court of Human Rights, acting both for and against the government of the United Kingdom and other Council of Europe Member States. Whilst he has a particular reputation in the application of international standards to criminal law and procedure, he has extensive experience in all aspects of ECHR litigation, and has acted in cases covering a wide range of international law issues including diplomatic and state immunity, parliamentary privilege, judicial independence, and discipline within the armed forces. He has been particularly recognised for his work in developing the law governing the protection of the right to life in Article 2 and the state’s duty to prevent torture and inhuman and degrading treatment under Article 3. He has a record of representing media clients in free speech cases, and has also acted in most of the major cases over the last decade concerning limits on the right to demonstrate.

His recent client list includes:
Ramush Haradinaj former Prime Minister of Kosovo under the Provisional Institutions of Self-Government established by the UN following the armed conflict in 1998 and 1999. Emmerson has been leading Haradinaj’s defence before the International Criminal Tribunal for the Former Yugoslavia in The Hague on war crimes charges. Julian Assange, the Wikileaks founder who is currently facing extradition to Sweden on allegations of sexual assault. At a hearing in July 2011 Emmerson argued that Assange’s extradition should be refused because the conduct alleged against him would not amount to a crime in English law. Marina Litvinenko the widow of the dissident former Russian agent Alexander Litvinenko who was fatally poisoned in London 2006 after ingesting the radioactive substance Polonium 210.

ECHR cases
His most notable cases in the ECHR include:

Osman v UK (2000) 29 EHRR 245. The seminal ECHR decision stablishing for the first time the state’s positive operational obligation to protect the right to life under Article 2 ECHR.

McGonnell v UK (2000) 30 EHRR 289. The case concerned the concentration of judicial, legislative and executive functions performed by the Bailiff of Guernsey in breach of the constitutional separation of powers, but led in part to the separation of the functions formerly concentrated in the Lord Chancellor, and the establishment of the Ministry of Justice.

Foxley v UK (2001) 31 EHRR 25. Interception of legally privileged correspondence found to violate the right to a fair trial under Article 6 ECHR and the right to privacy under Article 8 ECHR.

Condron v UK (2001) 31 EHRR 1. The compatibility of legislation permitting inferences to be drawn where a suspect in a criminal investigation exercises the right to remain silent in the face of police questioning. The applicants, who had been advised by their solicitor not to answer questions, were held to have been victims of a violation of the right to a fair trial under Article 6 ECHR.

Khan v UK (2001) 21 EHRR 1016. The placing of a covert listening device in the applicant's home without primary legislation authorising its use was a violation of the right to privacy in Article 8 ECHR, but the admission of the evidence obtained through the use of the device during the applicant's criminal trial did not violate the right to a fair trial under Article 6 ECHR since the Convention does not recognise a US-style “fruit of the poisoned tree” doctrine. This case led to the introduction of the Regulation of Investigatory Powers Act.

Z v UK (2002) 34 EHRR 3. Emmerson was instructed by the Official Solicitor on behalf of four children who suffered appalling neglect in their family home, but were not removed into care despite the local authority being fully aware of the conditions in which they were forced to live. The ECHR held that the conditions in the family home amounted to inhuman and degrading treatment in breach of Article 3 ECHR, and that the local authority, as the responsible institution of state, was under a positive obligation to to take steps to remove them. The children (whose claim had been excluded in the House of Lords on public policy grounds) succeeded and received six figure compensation awards.

Edwards and Lewis v UK (2005) 40 EHRR 24. The applicant alleged a violation of the right to a fair trial under Article 6 ECHR in a criminal case in which the judge had rejected his claim to entrapment on the basis of evidence which the judge had been shown during an ex parte public interest immunity application. The implications of this decision were considered by the House of Lords in R v H and C (below) and led to the introduction of the “special advocate” procedure in criminal cases to safeguard the rights of the accused during ex parte public interest immunity hearings.

[|A and Others v UK] The ECHR held that the UK derogation from the ECHR to enable indefinite detention of foreign terrorist suspects without trial under Part 4 of the Anti-Terrorism, Crime and Security Act 2001 (“the Belmarsh case”) was in violation of the derogation provisions of Article 15 ECHR (as it was disproportionate and discriminatory). The ECHR also held that the right to a fair trial required that the person affected should be entitled to know, and respond to, the essential factual allegations made against them in closed proceedings.

The Human Rights Act 1998
Emmerson acted in many of the most important cases decided by the House of Lords after the Act came into force, including:

Attorney General’s Reference No. 3 of 2000, Re G (Entrapment), [2001] 1 WLR 2060 (Article 6: permissible limits of police entrapment and state-created crime).

R v Kansal (Yash Pal) (Change of Law) [2002] AC 69 (Article 6: retrospective application of the Human Rights Act to cases decided before the Act came into force).

R v Lyons and others [2003] 1 AC 976 (Article 41: domestic implementation of a judgment of the ECHR in conflict with binding provisions of domestic law).

Attorney General’s Reference No. 2 of 2001, Re J (Unreasonable Delay), [2004] 2 AC 72 (Article 6: right to trial within a reasonable time, remedies for unreasonable delay in criminal proceedings).

R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182 (Article 2: state’s duty to investigate allegations of state responsibility for death in custody, leading to the introduction of narrative verdicts at inquests where state involvement in the death, through act or omission, is in issue).

R v H and C [2004] 2 AC 134 (Article 6: fair trial, requirement for special advocate to represent the interests of the accused in ex parte public interest immunity proceedings in the Crown Court and the Court of Appeal).

A and others v Secretary of State for the Home Department [2005] 2 AC 68 (Articles 5 and 15: compatibility with Article 15 of the UK’s derogation from Article 5 to authorise indefinite detention of foreign terrorist suspects without trial).

A and others v Secretary of State for the Home Department (No. 2) [2006] 2 AC 221 (Article 6 ECHR, Article 15 UNCAT: admissibility in SIAC proceedings of evidence obtained through the use of torture by a foreign state).

SSHD v JJ and ors [2008] 1 AC 385; SSHD v E and anor [2008] 1 AC 499 (Articles 5 and 6: permissible limits on the imposition of terrorist control orders).

The right to demonstrate
Emmerson has acted in most of the major ECHR and domestic cases over the last decade concerning limits on the right to demonstrate, including:

R (Laporte) v Chief Constable of Gloucestershire [2007] 2 WLR 46. Emmerson represented a group of peace campaigners protesting at Fairford Air Force base which was then being used by the USAF to launch B52 bombing raids on Iraq. The House of Lords held that the police strategy of detaining them en route to the demonstration (on the ground that the demonstration was a threatened breach of the peace), turning away their coaches and escorting them back to London, amounted to a violation of the freedom of expression under Article 10 ECHR and the rights of peaceful assembly and association under Article 11 ECHR and was unlawful.

Gillan and others v United Kingdom [2209] ECHR 28 (12 January 2010). Emmerson represented the complainants who had been detained and searched whilst handing out anti-war leaflets outside an arms fair in London. The ECHR held that the use of random stop and search powers (under sections 44 to 47 of the Terrorism Act 2000) against peaceful protestors was a violation of the right to privacy under Article 8 ECHR.

Austin and others v United Kingdom, Judgment 15 March 2012. The ECHR found that the use of controversial “kettling” tactics by police during a May Day demonstration in 2001, by which the applicants were held for 12 hours inside a police cordon at Oxford Circus in London did not amount to a deprivation of liberty for the purposes of Article 5 ECHR.

Gender, sexuality and gender identity discrimination
Emmerson has conducted numerous cases concerning gender discrimination, discrimination on grounds of sexual orientation, and discrimination against persons with gender identity disorder:

Fogarty v UK (2002) 24 EHRR 12. Emmerson appeared in the ECHR for a former employee of the US Embassy in London who had lost a claim to sex discrimination and victimisation when the Embassy claimed diplomatic and state immunity. The case turned on the compatibility of the law governing claims to state immunity with the access to court requirements of Article 6.

Smith and Grady v UK (2000) 29 EHRR 493. Emmerson appeared in the ECHR for two gay service personnel challenging the exclusion of homosexual servicemen and women from the armed forces, and the adequacy of judicial review on established Wednesbury principles. This successful challenge led the MOD to abandon its policy of excluding homosexuals from all three armed forces.

Pearce v Mayfield Secondary School Governing Body [2003] UKHL 34. Emmerson represented a lesbian teacher who alleged in the House of Lords that a school's failure to protection her against harassment on grounds of her sexual orientation amounted to discrimination under the Sex Discrimination Act 1975. This case led to the Employment Equality (Sexual Orientation) Regulations 2003 which prohibit employment discrimination on grounds of sexual orientation.

ADT v UK (2001) 31 EHRR 3. Emmerson successfully argued in the ECHR that the criminal prosecution and conviction of the applicant for taking part in consensual group homosexual activity in private constituted a violation of the right to privacy in Article 8 ECHR and the protection against discrimination in Article 14 ECHR.

P v S and Cornwall County Council, Case C-13/94 [1996] IRLR 347. The leading case in the European Court of Justice in Luxembourg holding that Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment (“the Equal Treatment Directive”) prohibited dismissal of a person with gender identity disorder who, whilst employed, underwent male to female gender re-assignment treatment.

Investigative Journalism and national security
Emmerson has long been recognised for his advocacy in support of the vital role played by investigative journalism and the need to protect investigative journalists against excessive legislative, executive or judicial interference. He was adviser to Associated Newspapers on the disclosures made in the Mail on Sunday by former MI5 officer David Shayler (including the allegation that MI6 planned to assassinate Libyan President Colonel Gadaffi).

Soon after the Human Rights Act came into force he successfully represented the Observer newspaper and its political editor Martin Bright in a landmark challenge under Article 6 and 10 to an order for the production of documents relating to Shayler's allegations: R v. Central Criminal Court, ex parte the Guardian, the Observer and Martin Bright [2001] 2 All ER 244. In upholding the paper's claims, Lord Judge LCJ held that:

“Inconvenient or embarrassing revelations, whether for the Security Services, or for public authorities, should not be suppressed. Legal proceedings directed towards the seizure of the working papers of an individual journalist, or the premises of the newspaper or television programme publishing his or her reports, or the threat of such proceedings, tend to inhibit discussion. When a genuine investigation into possible corrupt or reprehensible activities by a public authority is being investigated by the media, compelling evidence is normally needed to demonstrate that the public interest would be served by such proceedings. Otherwise, to the public disadvantage, legitimate inquiry and discussion, and 'the safety valve of effective investigative journalism' would be discouraged, perhaps stifled.”

The NUJ hailed the judgment as a "great victory for reporters", describing it as ''a boost for investigative reporting, an area of journalism vital to society which has been in decline."

Since then Emmerson has advised a number of newspaper and media clients, including the BBC, on the ethics and lawfulness of particular investigative journalism strategies. He was adviser to the BBC, and its Director General Mark Thompson on investigative journalism aspects of the Leveson Inquiry. He has also successfully defended the BBC against a variety of legal challenges (brought under various provisions of European law) to the statutory obligation to pay the television licence fee as a means of funding public service broadcasting.

Emmerson has extensive experience in dealing with the conflict between the right to freedom of expression, and the restrictions imposed by national security legislation:

He successfully represented Catherine Gunn, the GCHQ whistleblower who was prosecuted under the Official Secrets Acts after revealing US attempts to manipulate the UN Security Council into authorising the invasion of Iraq.

He is currently special adviser to Article 19's draft Global Principles on National Security and the Right to Information.

In his capacity as special rapporteur he has issued a number of statements emphasising the need for democratic oversight of intelligence and security services.

Commercial (criminal and regulatory) work
In addition to his human rights work, Emmerson has acted in many of the high profile prosecutions in recent years brought against international corporates and related individuals by the SFO and the OFT:

In 2009 he successfully defended a senior agent of BAe Systems in connection with allegations of bribery in securing foreign public procurement contracts in Tanzania, investigated by the Serious Fraud Office.

In 2010 he succesfully defended a senior British Airways executive in the first criminal cartel prosecution brought by the Office of Fair Trading arising out of alleged price-fixing between BA and Virgin.

He is currently acting, together with Lord Goldsmith QC, for Vincent Tchenguiz, the property tycoon under investigation by the Serious Fraud Office for his alleged role in the collapse of the Icelandic bank Kaupthing Hf.

He previously acted for Dame Shirley Porter, former Conservative leader of Westminster City Council who was surcharged following the “homes for votes” scandal. Emmerson represented Porter in her application to the European Court of Human Rights: Porter v United Kingdom, Judgment 30 May 2003. Emmerson represented the “Guinness Four” (Ernest Saunders, Gerald Ronson, Jack Lyons and Anthony Parnes) in their unsuccessful attempt to have their convictions for share support fraud overturned following a ruling in Strasbourg that their trial had violated Article 6 because powers of compulsory questioning granted to the Serious Fraud Office infringed the protections against self-incrimination: R v Lyons [2003] 1 AC 976 HL; also R v Kansal (No. 2) (Lyons and others intervening) [2002] 2 AC 69 HL.

Representation of UK Government and public authorities
Although he is best known for his work in representing individuals, Emmerson has also defended the UK government and public bodies against challenges on human rights grounds.

NHS Trust A v MNHA Trust B v H [2000] All ER (D) 1522: Emmerson appeared for the official solicitor in the first case under the Human Rights Act to determine whether the withdrawal of life support (artificial nutrition and hydration) to insensate patients in a permanent vegetative state is compatible with the right to life in Article 2. He argued successfully that the existing law as laid down in the Tony Bland case, met the requirements of the Convention.

Z v UK (2002) 34 EHRR 3. Emmerson was instructed by the Official Solicitor on behalf of four children who suffered neglect in their family home. For details see above.

A v UK (2003) 36 EHRR 51: Emmerson appeared for the UK Government in Strasbourg in two cases challenging the principles of Parliamentary privilege which prevent MPs being sued for libel for words spoken on the floor of the House. In Zollman v UK he was instructed by the Cabinet Office after Peter Hain, then a Labour Minister, used a speech in the Commons to “name and shame” two Dutch diamond dealers whom he alleged to have been dealing in blood diamonds from Angola. The Government succeeded in both cases.

R (O) v Crown Court at Harrow and Governor of HMP Wormwood Scrubbs [2006] 3 WLR 195: In 2006 Emmerson successfully defended the DPP and the Home Office against a challenge to legislation restricting the power of a criminal court to grant bail in a rape case to a defendant with a previous conviction for rape.

The Robert Hamill Inquiry: In 2010 Emmerson appeared for the DPP for Northern Ireland in an inquiry into the failure of the Public Prosecution Service to secure convictions of a group of loyalists responsible for the sectarian murder of Robert Hamill. The Inquiry has yet to publish its report.

He has advised the former Data Protection Registrar, and more recently the Information Commissioner on the implications of the Human Rights Act for data protection.

Representation of other Council of Europe Member States
Emmerson has also appeared in international litigation in various international tribunals either for or against the governments of other Council of Europe Member States including:

Acting as lead counsel for the government of Cyprus in a series of cases in the ECHR connected to the inter-state dispute between Cyprus and Turkey related to the occupation of Northern Cyprus and the establishment of the “TRNC”.

Kafkaris v Cyprus [2008] ECHR 21906/04. Emmerson successfully represented the Government of Cyprus in the ECHR against a challenge to the imposition of a whole life sentence on a man convicted of a terrorist murder in which a number of innocent people (including children) were killed or injured.

Georgia v Russia (Admissibility decision, 12 December 2011, Application No. 38263/08). Emmerson acted as lead counsel before the ECHR for the government of Georgia in its inter-state claim in the European Court of Human Rights against Russia, arising out of the invasion in August 2008 of the autonomous regions of South Ossetia and Abkhazia. The application, which raised extremely complex and controversial issues of international law (including the intrerface between international humanitarian law and international human rights law) was declared admissible and is currently in the merits phase of the Court's deliberations.

Acting for the government of Croatia in a claim before the International Court of Justice against Serbia seeking reparation for breaches of the Genocide Convention during the Balkans conflict.

Directory Assessments
The English legal profession is independently monitored by a series of professional directories whose researchers take soundings from other professionals, including barristers, solicitors, and legal academics, in order to rank practitioners according to their professional standing in the domestic legal profession. The principal directories are Chambers & Partners directory and the Legal 500.

Ben Emmerson QC is ranked by Chambers & Partners legal directory 2012 as a “star performer” (i.e. one of the top silks at the English Bar) in the field of Human Rights and Civil Liberties, and in the field of general Criminal Law. He is also recommended as a leading silk in the field of Administrative and Public Law by Chambers and Partners 2012 and by the Legal 500 directory 2011.

The directories state:

United Nations special rapporteur Ben Emmerson QC is a “superb lawyer, who is extremely intelligent”. He has “market-leading tactical expertise” and is “massively in demand” for human rights cases. Commentators note that he has “the ability to put together fantastic packages of ideas” and “is able to work minor miracles” with the cases before him. Many of his matters are international in nature and he has vast experience of handling cases in the European Court of Human Rights. Chambers & Partners (2012)

In the field of human rights, he is "one of the best in terms of courtroom performance. Extremely lucid, clear and forceful, he sweeps the judges along with him". He is “one of the ten best silks in the country”. Chambers & Partners (2011)

“When it comes to international human rights law, his vast knowledge and experience place him at the top of the tree. He is the man to plump for if you have a criminal law case with a strong human rights angle to it”. Chambers & Partners (2011)

Ben Emmerson QC is a "formidable opponent due to his mastery of the issues", and is "pre-eminent in his field and impossible not to look up to". As a criminal lawyer he is "exceptionally gifted, with a wonderfully analytical, first-class brain". Chambers & Partners (2009)

“Absolutely at the top of his game,” Ben Emmerson QC elicits rave reviews from all corners. Sources marvel at his “ability to read the court and harness his leviathan intellect to tackle the facts of a case.” Ben Emmerson QC enjoys a stupendous reputation. Brilliant on civil liberties and public law issues, he possesses a “first-rate knowledge of the law and prepares arguments well.” Chambers & Partners (2008)

Recommended in Human Rights and Civil Liberties, Ben Emmerson QC is “beyond praise” and takes “an intellectual approach to cases”. Legal 500 (2008)

Ben Emmerson QC is “the first person to call on” and “a beneficiary of enormous respect” in public and administrative law. He is “a leading presence in the field of human rights”. Chambers and Partners (2007)

Ben Emmerson QC is “outstanding”. He is “clearly a real leader” in the human rights field and has a “massive reputation”. Chambers & Partners (2006)

Ben Emmerson QC has “a reputation founded on an astonishing series of cases” before the ECHR. He can “turn his hand to anything, deploying beautifully constructed arguments”. In the field of human rights law, he has “a pedigree that doesn’t need endorsement”. A combination of “incredible determination” and “encyclopaedic knowledge” makes him a force in European human rights law. Chambers & Partners (2005)

Ben Emmerson QC is “head, shoulders and everything else” above the rest for European human rights law. Chambers & Partners (2003)