fco guidance (redacted)

14. Identifying Cases For Referral To The Human Rights Adviser (HRA)

Key Points To Look Out For And Refer To HRA:


DEATH PENALTY: All cases where imposition of the death penalty on a British national is a possibility or has already been passed down should be reported to the HRA.


DEATHS: Has a British national died in detention overseas? Has the death of a British national overseas in any circumstances not been promptly or adequately investigated? The State must refrain from unlawful killing and may be under a duty to investigate suspicious deaths. Concerns about cases of this nature should be raised with the HRA.


TORTURE: You may receive reports that a British national has been tortured. An act of torture is one which causes severe pain or suffering, physical or mental, and has been intentionally inflicted upon a person:

  • to obtain information or a confession; or
  • to punish an act committed or one suspected to have been committed; or
  • to intimidate or coerce; or
  • for any reason based on discrimination of any kind;
  • and has been inflicted by/ at the instigation of/ with the consent/acquiescence of a public official or someone acting in an official capacity.


INHUMAN/DEGRADING TREATMENT OR PUNISHMENT: Treatment not severe enough to constitute torture may still be classed as cruel, inhuman or degrading treatment and should also be referred to the HRA. Depending on the circumstances, this may include beatings, food or drink deprivation, subjection to noise or long-term solitary or sensory confinement. Degrading treatment is that which grossly humiliates a person before others or forces someone to act against their will or conscience.


ARBITRARY DETENTION: Is a British detainee being held unlawfully? It is important to find out if a detainee has been informed promptly at the time of arrest, in a language they understand, the reasons for arrest and any charges against them. Equally, has the detainee been brought promptly before a judge and been able to challenge the lawfulness of detention? Any doubts relating to these matters should be referred to the HRA.


INCOMMUNICADO DETENTION: To be detained incommunicado is to be unable to communicate with the outside world. Such detainees are denied access to lawyers, consular officials, family and doctors. Those detained incommunicado may also be at risk of suffering further breaches of their human rights whilst isolated. There may also be a question of whether the detaining state has breached its obligation under the Vienna Convention on Consular Relations in relation to consular access.


UNFAIR TRIAL: Has a detainee been given a fair and public trial within a reasonable time? Refer to the HRA if you are concerned that the tribunal was not independent or impartial. Also alert the HRA if, during trial, a detainee has not been presumed innocent, has not been allowed to defend himself or have legal assistance, or has not had free assistance of an interpreter where necessary.


DISCRIMINATION: The HRA should be notified if you have concerns that a British national is facing discrimination. Discrimination is any difference in treatment based on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status which aims at restricting or denying ones human rights and fundamental freedoms.


EXPRESSING OPINIONS: Freedom of expression allows a person to hold opinions and to receive and communicate information and ideas without public authority interference. Restrictions that are lawful, necessary and proportionate may be imposed for various reasons, such as national security and the prevention of disorder, but all cases should be referred to the HRA for assessment.


RELIGIOUS BELIEFS: Has a British national been denied freedom of thought, conscience or religion? Has he/she been forbidden from practising his/her religion in public or in private? Restrictions that are lawful, necessary and proportionate may be imposed for various reasons, but all cases should be referred to the HRA for assessment.

The guidelines above are in accordance with international human rights law documents and treaties.


Interference


15. Under international law, we cannot interfere in the internal affairs of another State, including their judicial proceedings. Our own internal affairs are similarly protected from foreign interference. On the other hand, we are entitled to intervene at appropriate stages and in appropriate ways. Judging whether our involvement is considered interference or intervention depends on the grounds on which it is justified, the objectives being pursued and the manner in which it is done. Weighing these factors calls for careful consideration.


16. As a general rule, expressing an opinion on the merits of a case such as the guilt or innocence of the accused, or on the interpretation and application of local law would not be appropriate and could be considered interference. But lobbying local authorities to ensure basic procedural rights are upheld, such as being tried without delay or the right of appeal may be appropriate intervention. If in doubt seek the advice of Consular Directorate. The following actions could be considered interference and should be avoided:

taking a position on the merits of a case particularly before the national local courts have given final judgment;

  • seeking inappropriately to influence the court’s judgment in a case;
  • seeking preferential treatment for a British national over others in a similar situation (unless necessary to meet international human rights standards);
  • trying to run a case in a local court or act as a legal representative;
  • lobbying against a particular punishment, except capital and corporal punishment;
  • criticism of the verdict reached by a court following due process.


Fair Trials


25. Try to become familiar with the legal system in your country. This table is intended for guidance on when to refer cases of unfair trials back to Consular Directorate.


26. Complete the table with details about how the legal system in your county meets, or may fail to meet, the standards set out. Keep a copy of the table for future reference, keep it up to date, and make sure the Country Casework Team in Consular Directorate has a copy.


27. Consult Consular Directorate when a British national claims they have not received a fair trial or you are concerned that the trial of a British national does not appear to be conforming to the standards set down in the fair trial guidelines table.


Pro Bono Lawyers Panel


32. The FCO Pro Bono Lawyers Panel was set up to help promote and protect the human rights of British nationals detained or imprisoned overseas. The panel functions by providing legal expertise and advice to British nationals facing legal proceedings abroad where we have concerns about due process or human rights violations. A member of the panel can only assist when the British national concerned and his or her lawyer agree to assistance. The pro bono lawyer works with the local lawyer rather than replaces him/her. The pro bono lawyer gives all advice and assistance directly to the British national and the local legal team: the pro bono lawyer is instructed by the prisoner and not by the FCO. All requests for a case to be referred to a pro bono lawyer should be made to Assistance Policy and Prisoners Section and copied to the Country Casework Team.


33. The Human Rights Adviser will determine if a case is suitable for referral to a pro bono lawyer. It is important that cases for referral to a pro bono lawyer are identified as early as possible in order to be effective. Desk Officers or Posts should speak with the Human Rights Adviser as soon as:


  • there is concern over the fairness of criminal proceedings; or
  • there is a possibility that a human rights violation has occurred; or
  • the possibility [of] the death penalty is raised; or
  • if, after reviewing the case, it appears there may be something a UK pro bono lawyer could assist with.


If in any doubt as to whether a case should be referred, either Post or the Desk Officer should raise the matter with the Human Rights Adviser.


34. There is no ‘correct’ point in criminal proceedings for referring a case; the best time to refer will depend on the individual circumstances of the case and could be at the pre-trial stage, the appeal stage, or even when domestic legal proceedings have come to an end.


35. Once a case has been identified, and the Human Rights Adviser has agreed to refer it to a panel lawyer, Post should contact the British national and offer the service of a pro bono UK lawyer (the HRA will provide the text for this letter). It should be explained that the local lawyer must also agree to assistance and that there is no guarantee that a member of the panel will agree to assist. The British national should also be told that if a UK lawyer does agree to assist, he or she will be asked to formally instruct the lawyer in writing, and that any advice given will be independent and confidential.


36. Once the Human Rights Adviser has found a pro bono lawyer who can help, (s)he will pass on the UK lawyer’s details to Post and the local lawyer’s details to the UK lawyer. Where appropriate, Post may be asked to formally introduce the UK pro bono lawyer to the local lawyer, either by letter or by telephone.


37. At this stage, Post will be asked to obtain from the British national a signed written confirmation form formally instructing the UK pro bono lawyer.


38. FCO post-referral assistance will vary from case to case. There should be no interference with the independent legal relationship between the British national and their legal team. However, logistical and administrative support may be provided where appropriate and available. Such support may include the provision of a translation service for key documents, assistance in finding conference facilities, and arranging prison visits for lawyers.


39. It should be remembered at all times that the UK pro bono lawyer is not instructed or appointed by the FCO and is not being asked to provide legal advice to the FCO.