The Human Rights Act: Chindamo and the Tories

The news rightfully was rife with the Judgement of the Immigration Appeal Tribunal which determined that Learco Chindamo, the Italian murderer of Phillip Lawrence the school-teacher should not be deported to Italy.

On an emotional note I am incensed by this because my views are and remain that a foreign national who is allowed to enter any country (Britain or Burma) should respect the laws of the country and when he ceases to do so, should be sanctioned under law and deported.

However there are a few facts of this case, which I believe have not been highlighted in the press and which I presume made the job of the Judge quite difficult:

a. Chindamo is half-Italian and half-Phillipino;

b. He was brought to the UK by his mother (from Italy) at the age of five;

c. He was 15, in effect a Juvenile when the crime was committed;

The reasoning of the Court was that his Human Rights would be infringed by his return to Italy on account of the following:

a. That he had no ties to Italy since he had not been there since he was 5;

b. That to remove him would contrary to his Human Rights of which such an exception whilst permitted in the public interest would be disproportionate;

c. Also considered were a Probation Office assessment of his present disposition, showing that he had reformed and was no longer a danger to the Public

In all honesty the principle of proportionality as used in this decision is not strictly prescribed in the Human Rights Act 1998, but the creature of a number of decisions intepreting the European Convention on Human Rights upon which the Human Rights Act is based.

The Human Rights Act provides the right, which in the public interest as defined by the Secretary of State can be overridden.

The principle of proportionality as defined was not a creature of statute strictly speaking but a Judicial concept, basically guidelines emanating from Case Law, in this instance the European Court of Human Rights and applied in a number of UK decisions e.g in R v Secretary of State Ex Parte Mahmood- dealing with the right to family life under Article 8 of the ECHR and guidelins for determining if a removal is proportionate, where there is a family life established as per Article 8 of the ECHR.

I do not agree with the decision of the Court in that Chindamo's father resides in Italy and indeed his extended family lives there and he could have been returned to Italy with the proper arrangements in place. However, I am loathe to criticise the Judge's because they had a discretion under the law which they applied, whether I disagree or not.

I am however concerned about the rabid noise from the Tories, particularly from David Davis, criticising the Human Rights Act. I've made my views clear on the efficacy of the Act previously and will say that the problem has not been the Act but the way its applied in Juducial decisions.

One area which certainly needs clarification is the question of balance between the UK constitution and the Act, this is a grey area which needs to be either debated and straightened out by Parliament or indeed by a referral to the House of Lords, possibly in this case.

Knee-jerk populist reactions, which deal with the superficial position and which pander to readers of the Sun and Telegraph are to reduce a very important decision to the realm of anecdotal political Pub tattle, thats not statesmanship, thats Speakers Corner politics.

I understand the Home Office is keen to appeal and I certainly hope their Lawyers do a better job on appeal, though I fail to see how they can succeed, being that factual issues which should have been capitalised on at first instance were not fully highlighted and the Appeals Tribunal interprets issues of Law and not facts.

© Edward Keazor