Daniel Fenwick | Northumbria University (original) (raw)

Papers by Daniel Fenwick

Public Law, 2020

Reflects on whether the Prevent strategy, intended to avoid persons being drawn into terrorism, i... more Reflects on whether the Prevent strategy, intended to avoid persons being drawn into terrorism, is chilling expression in schools. Examines Prevent's operation, whether the term "extremism" is over-broad, whether referrals of pupils hinders free speech by creating suspect groups in the Muslim community, and the difficulty regarding external speakers. Notes the challenge of balancing restrictions with freedom of expression, and possible reforms.

Manifestations of prejudice against sexual minorities are currently especially resurgent in certa... more Manifestations of prejudice against sexual minorities are currently especially resurgent in certain “Eastern” Council of Europe Member States. This article argues that the current approach at the Strasbourg Court in this context shows tensions between two conflicting demands: it is seeking both to protect sexual minorities, but also its own authority, by relying on the consensus doctrine to avoid determinations likely to lead to open conflict with such states. In respect of homophobic hate crimes and bans on public manifestations of support for sexual minorities, the Court has shown a robust determination to provide protection for such minorities, partly on the basis that there is no consensus among the Member State supporting such practices. But, in strong contrast, in the context of formalisations of same-sex relationships, there are signs that “East”/“West” divisions are having some inhibitory impact on its judgments, accommodated mainly via consensus analysis. This article there...

International Human Rights and Counter-Terrorism, 2019

In the UK the rise post-2005 in 'home-grown' terrorism, relying to a significant extent on strike... more In the UK the rise post-2005 in 'home-grown' terrorism, relying to a significant extent on strikes on soft targets by 'self-starters', means that the search for effective preventive measures remains a continuing concern. Below a number of the preventive counter-terror measures adopted post 9/11, and incrementally strengthened in response to the current threat, are found to fall into three categories and represent interventions at the stages in the path towards attacks. This chapter focuses on selected examples of these preventive measures. In terms of three key stages, firstly, there is the attempt to prevent radicalisation, under the 'Prevent' strategy. A second strategy relies on taking certain measures to control the activities of those considered likely-on the balance of probabilities-to engage in terrorist-related activity. A third preventive strategy relies on the special terrorism offences under the Terrorism Acts 2000 and 2006, as amended, intended to allow for intervention at a very early stage in terrorist plots and in preparing or instigating terrorist acts ('precursor' offences).

International Review of Law, Computers & Technology, 2013

This article evaluates two significant methods of protecting private information in the UK-via ac... more This article evaluates two significant methods of protecting private information in the UK-via actions under the tort of misuse of private information, and via press regulation. As the Leveson Report has recently found, parts of the press have systematically abused their power, in terms of acquiring and publishing personal information non-consensually. Thus, as the Report found, it appears that the system of press self-regulation has been shown to be ineffective. The article considers the Leveson proposals for an improved system of press regulation and the current proposal of a Royal Charter. It suggests that, ideally, press regulation could work alongside the tort, tending to encourage press restraint, obviate the need for court action, and providing a remedy for those not willing or able, due to lack of resources, to go to court to seek a remedy for privacy invasion. The history of press selfregulation indicates that those results may not be achieved, but it will be argued that the current response to the Leveson Report in the form of a Royal Charter suggests otherwise.

Medical Law International

This article makes the case for the provision of access to assisted death in prisons, founded on ... more This article makes the case for the provision of access to assisted death in prisons, founded on the right to self-determination under Article 8(1) ECHR, in order to create equivalence between prisoners and non-prisoners. It considers possible State justifications for interferences with the right under Article 8(2) and whether they would meet the Convention standards of legality and proportionality. In relation to proportionality, it is argued that the foundational basis for restrictions on assisted dying imposed on both the general and prison populations derives from the concept of human dignity, a concept which is also fundamental to prisoners’ rights. Under the banner of proportionality, from an initial presumption of equivalence of access to assisted dying, the article identifies certain conditions inherent in the prison situation that inevitably oppose human dignity and which provide a plausible basis for divergence. Ultimately, it is concluded that an absolute bar on provision...

Over the last four to five years the terrorist threat faced by the contracting states of the Euro... more Over the last four to five years the terrorist threat faced by the contracting states of the European Convention on Human Rights (ECHR) has intensified and become more widespread. The threat has come to a significant extent from their own citizens, and since suspect nationals usually cannot be deported, it might have been expected that detention or control measures, requiring derogations under art.15 of the ECHR , would have been put in place. It is therefore of interest to note that very few derogations have been sought, despite the significant rise in recent terrorist activity. This article considers why derogations have not played a pivotal role in the current "war on terror", and connects the answer to some of the advantages of relying on derogations as opposed to exploring alternative ways of evading the ECHR guarantees. It argues that derogations are not currently playing the role envisaged for them by the founders of the ECHR , and that there is a case for resorting...

This thesis seeks to answer a seemingly intractable question in English human rights law: how sho... more This thesis seeks to answer a seemingly intractable question in English human rights law: how should we understand the nature, constituent elements and application of a human right to enabled suicide? A moral framework is developed, based on the theories of Alan Gewirth and Deryck Beyleveld, in order to critique the approach to such a right in English law. The thesis argues that current approaches have failed to articulate the status of this right fully, in particular as regards the balance between its exercise and the protection of the right to life of others. Thus, the thesis seeks to use Gewirthian theory to defend an alternative understanding of the human right to enabled suicide. This ethically justified right is used to resolve the intractable questions of human rights law that, it is argued, have undermined the legal response to the right to enabled suicide thus far. Specifically, the thesis will address the problem of a slippery slope resulting from possible abuse of procedu...

Extremism, Free Speech and Counter-Terrorism Law and Policy, 2019

In many Western democracies the rights of citizens are enshrined in a constitutional document usu... more In many Western democracies the rights of citizens are enshrined in a constitutional document usually known as a Bill or Charter of Rights. As Chapter 3 will explain, the rights protected under such a constitutional document are often given a special status; in a number of countries they are entrenched. Until the inception of the Human Rights Act 1998 (HRA), the UK had no similar charter of rights. The Magna Carta 1215, while influential as a very early statement of rights, is not comparable to a modern Bill of Rights in terms of extent or impact on current law. In 2000, the HRA afforded further domestic effect to the European Convention on Human Rights, as discussed in Chapter 4. But even under the HRA, the rights are not entrenched, meaning that the HRA or parts of it could be repealed just as any other statute can be. However, as Chapter 1 explains the inception of the HRA means that protections previously recognised as liberties are now recognised as rights.

International Human Rights and Counter-Terrorism

Fenwick on Civil Liberties & Human Rights

The creation of a tort of invasion of privacy aimed at the protection of personal information aga... more The creation of a tort of invasion of privacy aimed at the protection of personal information against media intrusion filled one of the most serious lacunae in English law. Described by the Law Commission as ‘a glaring inadequacy’,2 and condemned by the Court of Appeal,3 dicta in a pre-Human Rights Act 1998 (HRA) decision of the House of Lords4 remarked upon ‘the continuing, widespread concern at the apparent failure of the law’ in this area.5 That failure was remedied under this largely HRAdriven legal development although, as this chapter will argue, recent developments in 2012-15 have undermined the efficacy of the tort in practice to an extent. It must also be borne in mind that, as the House of Lords stated in Wainwright v Home Office,6 there is no general, comprehensive tort of invasion of privacy, reaching far beyond protection for private information.7

Medical Law International, 2012

Legal Studies, 2014

This paper evaluates the role being adopted by the European Court of Human Rights when confronted... more This paper evaluates the role being adopted by the European Court of Human Rights when confronted with claims arising from the extreme restriction of access to abortion services in certain Member States. It will be argued that in response to such claims the Court has been prepared to find that the suffering of the applicants can be captured as forms of rights violation, but it has sought to avoid taking a stance as to foetal life, leading it to adopt a highly deferential approach and to avoid the substantive issues at stake, of protection for female reproductive health, dignity and autonomy, in favour of focusing mainly on procedural ones. Having considered such issues as the missing gender-based aspects of the abortion jurisprudence, this paper concludes that its restrained and largely procedural stance has enabled the Court to provide some limited protection for women, on healthcare grounds, but that the opportunity to recognise that highly restrictive abortion regimes systematica...

International Review of Law, Computers & Technology, 2011

The perceived successes of CCTV in terms of prevention and detection of crime and terrorist activ... more The perceived successes of CCTV in terms of prevention and detection of crime and terrorist activity provided further impetus to acquire and develop camera surveillance technology. This article argues that the increased use of such technology has inevitably changed the individual's relationship with the state as individuals are now subject to surveillance when they are in public spaces, travelling on public transport and within some business environments. Alongside these developments, the last decade has seen domestic recognition of the ‘right to respect for private and family life’ (Article 8 of the European Convention on Human Rights) after the coming into force of the Human Rights Act 1988 (HRA) in 2000, which received the Convention into domestic law. As the potential for intrusion into citizens' private life grows, it is possible, this article will argue, that the compatibility of visual surveillance under greatly increased CCTV infrastructure with Article 8 may be brought into question. The Coalition government has sought for the first time to address concerns about the erosion of privacy through excessive surveillance in Part 2, Chapter 4 of the Protection of Freedoms Bill 2011, which is currently in Report stage.