UK LOSES 3 OUT OF 4 EUROPEAN HUMAN RIGHTS CASES? MORE LIKE 1 IN 50, ACTUALLY

It is rightly said that 95% of statistics are made up. Today’s Daily Mail front page headline contained a typically exuberant statistical claim: Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals. According to journalist James Slack “Unelected Euro judges” are mounting a “relentless attack on British laws laid down over centuries by Parliament”.

The Telegraph’s Andrew Hough and Tom Whitehead chime in with Britain loses 3 in 4 cases at human rights court. But are they right? To add a bit of spice to this statistical journey, I will aim to use at least one analogy involving a popular TV singing contest.

The “explosive research” is a report by Robert Broadhurst, a Parliamentary legal researcher for a group of Conservative MPs. The headline grabbing figures are in this paragraph:

Between when it first signed up to the Court‘s jurisdiction in 1966 and the end of 2010, the UK faced over 350 rulings from the judges in Strasbourg… In about three-quarters of these judgements the Court ruled that the UK had breached a Convention right.

This is simply misleading. Only counting final judgments of the court obscures the reality of how it operates. In fact, the number of claims which are brought to the court is enormous compared to the amount which reach full hearings. This is because the vast majority are struck out at an early stage, and those strike outs are effectively victories for the UK.

Judges consider the case and decide that it is “manifestly unfounded”; similar to when a domestic court finds that a claim has no reasonable prospects of success. This is a very high bar, which means that the vast majority of claims don’t reach it. Some of these will be not worth the paper they are written on, but many are genuine claims and to ignore them when considering the court statistics is to miss most of what the court does.

Broadhurst’s figures are taken from the European Court of Human Rights’ owndocument, which reveals that since 1966, out of a total of 443 judgments against the UK, in 271 there was a finding of at least one violation of the European Convention on Human Rights. This is compared to 86 finding no violation.

But this is just the tip of the iceberg. As demonstrated by the rather nice pie diagram inanother of the court’s own reports, since 1966 97% of cases against the UK were declared inadmissible, that is they were struck out. This means that in reality, of all the claims brought before the court against the UK (in the region of 15,700, by my calculation), only 3% made it to full hearings, and a – let’s face it miniscule – 1.7% succeeded.

So, not three quarters, as the Mail suggests, but under one in fifty cases brought before the court against the UK were successful. As it happens, the Strasbourg court is good at publishing statistics, but perhaps could have been clearer with these, for example by including the total number of claims brought in its Violations by State table.

But in any case there is no excuse for a significant report – signed and prefaced by 10 MPs – making such a hash of its statistics (and I haven’t even mentioned the Mail’s “unelected” judges, who are actually elected).

Presenting the figures in this way is a bit like watching X-Factor from the live finals, which begin with 12 contestants, and extrapolating that since one of them wins in the end, therefore almost 10% of X-Factor applicants ultimately win the contest. In reality tens of thousands apply, so only a tiny percentage of them “win”, but most are “struck out” as being bad singers in the months before the finals.

The high proportion of finally decided cases which are successful is interesting, but it hardly represents a court which is mounting a “relentless attack” on the British laws. Indeed, there are so few fully heard cases that any statistical analysis is fairly meaningless anyway.

In fact, what the statistics do reveal is that the European Court hears a tiny amount of cases against the UK each year; just under 30. The success rate for the lucky few Claimants is quite high, but it is about the same the success rate across all states, and is probably is more a reflection of the high “manifestly unfounded” bar the court sets for Claimants than any “relentless attack” on British justice. In other words, only good cases get through, so a lot of those ultimately win.

So, legal researcher Robert Broadhurst can pop up on to the legal naughty stepfor disservices to statistics, and the Daily Mail and Telegraph journalists can join him for their gleefully unquestioning acceptance of his statistical sleight of hand.

By: Adam Wagner

Adam Wagner is a founding editor of the UK Human Rights Blog. He is a Legal 500 2011 recommended barrister specialising in public law, human rights and medical law, and was longlisted for the 2011 Orwell Prize for blogging. He can be found on Twitter as @AdamWagner1