Request for Priority under Rule 41 of the Rules of Court

There has been every conceivable way to stop Declan and me from writing his application to the European Court of Human Rights. Only yesterday, while I was having my lunch on floor 4 of our local library, Idea Store Whitechapel, some guy tried to have me barred. I was actually called into the office by two members of staff to be explained under what circumstances a newspaper I had taken from the racks to read should be given to somebody else.

Declan too could have got himself barred from the Sisters of Mercy-run Dellow Centre this morning. While he was having the breakfast the centre provides – more or less, a bowl of cereal these days – this homeless approached him to ask if he wanted his last toast. Ignoring him didn't seem to do the trick, so Declan told him that if he wouldn't mind he would like to eat in peace. "Don't talk to me like that, you f *****g c***," the guy shouts enraged, "I'll smash your f*****g face in."

Perhaps this guy was just a bit edgy because for over a week now the men's and women's washroom have been closed – no toilets, showers or sinks – and the TV hasn't been turned on for ages, and maybe he was expecting the hairdresser who at least in theory is supposed to come in on Wednesdays. (I myself haven't had a shower for, er, nearly three weeks – I have been washing with a wet jaycloth and some shower gel in public toilets.)

Last month will be difficult to erase from my memory though. It started with a trip at 3.00am to the Accident & Emergency department at the London Royal Hospital where Declan was diagnosed with an upper respiratory tract infection. Last month alone, we were forced to walk off our respective Big Issue pitch on Liverpool Street - where we sell The Big Issue, a magazine sold by homeless people throughout the UK on registered street pitches - a mere combined total of 17 times. On one occasion a couple tossing Jesus flyers to passers-by came so close to me on my pitch that I could have just about touched them. Needless to say, we haven't been able to afford two weekly bus tickets since 20 July, have no money whatsoever to spend on clothes – autumn is fast approaching – and in relation to food: well, I spend £1.30 a day and only eat once, while Declan is losing so much weight he will soon need another belt. (I am sure we can be forgiven for having a dim view of the Christian faith.)

We have also been treated to all kinds of sleep deprivation techniques in the side porch of the office building we sleep in at night: workers in and out of the building through the porch door at all hours of the night (we're out by 5.30am); once a large bin lorry stopped by the porch for over ten minutes with the engine running; bin men have brought the bins from across the road to the side of the porch and have been collecting them at all hours of the night, normally with a big racket; people have gathered by the porch like outside some celeb bar in Mayfair; and cars have blasted music into the porch at all sorts of hours early in the morning, porch-side front doors wide open. Oh, and some guy threw a police road sign into the steps of the porch – the handle end hitting me in the back.

And, of course, the month wouldn't have been complete without the all-too-familiar visit to the porch by the Bishopsgate City of London Police. The first visit of the month on 10 August, the eleventh to date, saw us being questioned by the same two police officers on horses that questioned us on 1 July. The second visit on 22 August was by a single police officer who told us with a straight face that he was visiting us because he was concerned about our welfare.

For me, the most memorable image is that of a beggar being arrested by two Bishopsgate police officers outside Liverpool Street train station on 1 September, Declan having provided one of them with a witness statement to the effect that this beggar had abused him while he was selling The Big Issue and threatened to kill him. This particular beggar was later released on conditional police bail (you don't have to pay to be released on police bail), with the condition that – oh, here is a comfort – he couldn't go near Declan. This morning Declan had to write to Bishopsgate-based Chief Superintendent Ken Stewart on the bail matter. The letter just reads: "I refer to the enclosed copy of chronology in the above numbered case and wish to point out that within 24 hours the suspect has twice breached the contact restrictions of his police bail conditions." So there you have it: police bail conditions don't mean squat in the City of London.

Anyway, despite government attempts to press the delete key, we have finally managed to finish the application to the European Court against the UK, although Declan has yet to post it. And because we are literally being threatened with starvation, assault, and/or a criminal record – begging is illegal in England – we are also submitting a request for priority under Rule 41 of the Rules of Court. The next blog will carry the application itself (18 pages), but this is the request for priority:

             REQUEST FOR PRIORITY UNDER RULE 41
                        OF THE RULES OF COURT

   1.      The applicant respectfully requests that the Court consider this request for priority under Rule 41 of the Rules of Court.
   2.      The request is made by the applicant in person. The European Convention on Human Rights (ECHR) entered into force for the Government of the United Kingdom on 3 September 1953 and has been in force since that time with no reservations, declarations or understandings relevant to this present applicant.

BACKGROUND OF REQUEST

The applicant, Declan Heavey, a former teacher, was born in 1960 in Dublin and has been sleeping rough in London with his wife since 3 November 2006. In September 2003 the applicant and his wife moved from Dublin to Birmingham, England, where they were self-employed until July 2005. They attempted to set up an international secular humanist organisation called Network of those Abused by Church (NAC), for which the applicant's wife developed a website at www.nac1.bravehost.com. While self-employed they covered their expenses with savings of £44,000, the remnants of the applicant's late father's will.

In July 2005, the applicant and his wife were awarded Jobseeker's Allowance (JSA) at their local Jobcentre Plus (JCP), Birmingham Erdington Jobcentre Plus. On 14 August 2006, the applicant's wife attended an advisory interview at the JCP Office to review her Jobseeker's Agreement (JSAg) for the second time. On this occasion, however, the JCP threatened to suspend her JSA unless she extended the nature of the employment for which she would be available to include permanent work, and refused to accept her proposed JSAg for temporary work only for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. As a result of the refusal, the applicant's and his wife's entitlement to JSA was twice suspended and then ceased on 27 September 2006 because the applicant failed to "sign on" two days before he was due to do so on 29 September. In a series of letters, the applicant notified the JCP and the Secretary of State for Work and Pensions of the mistake, but no action was taken. (All the applicant received was a letter from JCP of 5 October 2006 acknowledging receipt of, inter alia, letters from him dated 29 and 30 September.)

Since 3 November 2006, the applicant and his wife have been sleeping rough in the side porch of an office building in the heart of London's business district. On 22 November, the Dellow Centre of the Catholic Sisters of Mercy Providence Row Charity recorded on the applicant's wife's registration form that St Mungo's, London's largest homelessness organisation, had informed the centre that neither the applicant nor his wife could be referred to a hostel "due to not being on any benefits".

On 18 December 2006, the applicant was admitted to Chelsea and Westminster Hospital for interstitial pneumonia. In the Discharge Summary Report dated 20 December 2006 the applicant's doctor, Dr M Feher, recorded that the applicant was admitted feeling feverish with cough, shortness of breath, and a chest pain that was worse on breathing, worse on inspiration. Dr Feher also noted that the applicant had not been eating due to lack of finance and had an episode of loss of consciousness, witnessed by his wife (see copy of this report in Supporting Documents, p 26). Since then the applicant has physically deteriorated. He has lost a lot of weight, and on 2 August 2007 attended the Accident & Emergency department at the Royal London Hospital. The Certificate of Attendance records that the applicant attended with an upper respiratory tract infection, for which he was prescribed a course of antibiotics to follow for five days (see copy of this certificate of attendance in Supporting Documents, p 52).

On 17 February 2007, the applicant was twice punched in the face in an unprovoked attack by a homeless man in the canteen of the Methodist Church Whitechapel Mission (crime reference no. 4204886/07). On 21 May, the applicant applied under the Data Protection Act 1998, as advised by the Metropolitan Police Service, for a copy of the witness statement taken from him at Bethnal Green police station on 27 April in respect of the assault, but the statement was never provided to him (see copy of letter and enclosures of 25 July 2007 to the European Commissioner for Internal Market and Services in Supporting Documents, pp 27-43). On 18 June, the applicant's wife was assaulted by a homeless woman in the canteen of the Whitechapel Mission (crime reference no. 4217341/07). Later that morning the manager of the Mission barred the applicant and his wife due to concerns about their safety (see copy of the applicant's letter and enclosures of 17 August 2007 to the President of the European Commission in Supporting Documents, pp 64-78).

According to the website of the Whitechapel Mission, the Mission is "often the only place open weekends, Bank Holidays, Christmas and Easter" and "the only place to obtain a cooked breakfast in the City or the East End". The barring of the applicant and his wife from the premises has had a very detrimental and disruptive impact on their lives, not least because they have been forced to wash in the public toilets of Liverpool Street train station.

The applicant and his wife have been surviving on the streets of London by selling The Big Issue magazine, which is sold by homeless people throughout the UK on registered street pitches. Frequently of late the applicant and his wife have had to walk off their pitches in order to avoid confrontation (for which they can be debadged) with other street traders. The applicant has lodged numerous complaints with The Big Issue with respect to the intrusion onto his and/or his wife's pitch of other Big Issue vendors and distributors of a number of publications, including, inter alia, London Lite, The London Paper, City AM and Sport (see copy of letter and enclosures of 30 August 2007 to the founder and editor-in-chief of The Big Issue in Supporting Documents, pp 79-87).

Further exacerbating the situation in respect of the applicant's ability to sell Big Issues has been the fact that, according to the Met Office, the summer "is already the wettest for England and Wales since 1912, and up to 21 August, the coolest for the UK since 1998". On 6 August, the applicant had to withdraw £200 from his Yorkshire Building Society account (see copy of bank statement in Supporting Documents, p 53), the last of the money he and his wife had been saving to put down a deposit on a flat: The Big Issue had told the applicant on initiation that if he had £350 for a deposit they would be able to find him and his wife somewhere to live.

Since 20 July 2007, the applicant and his wife have been unable to afford transport (for the last seven weeks they have been walking everywhere with all their belongings), clothes or other basic necessities, and have been eating very poorly. In light of their present circumstances, they are seriously concerned about this coming autumn and winter, which, according to the Met Office, will be cooler than last year. The applicant and his wife are especially concerned that if they cannot make enough money selling The Big Issue they will be reduced to begging – a criminal offence in England. (Throughout the UK authorities have resorted to Anti-Social Behaviour Orders (ASBOs) as a means of dealing with begging.)

On 1 September 2007, the applicant made a statement to the City of London Police at Bishopsgate police station following the arrest of a beggar for the racist and discriminative abuse of the applicant while he was selling The Big Issue the day previous, and a threat to kill (see copy of witness statement of 1 September 2007, with attachment, in Supporting Documents, pp 88-94).

The applicant submits that neither he nor his wife have been able to obtain any kind of gainful employment as a result of their particular circumstances. City of London Police have visited them at the porch they sleep in on twelve occasions to date. On 10 August, they were each issued a stop and search ticket stating that the reason for the stop was "welfare", and that the outcome was "satisfactory".

This applicant, for more than ten months, has therefore faced considerable uncertainty complicated by the deterioration of his health arising from a nutritionally inadequate diet, poor clothing, and being unable to afford transport since 20 July 2007.

The subject matter of the applicant's health is of considerable concern and may in itself be a ground for acceding to this application.

VIOLATIONS OF THE EUROPEAN CONVENTION

Under Articles 1 and 8 of the ECHR the United Kingdom has a positive obligation to ensure respect for an individual's private and family life. The Court has previously held that private life includes an individual’s physical and moral integrity (X and Y v Netherlands, No. 8978/80, Series A, No. 91, 26.3.85, (1986) 8 EHRR 235, para. 22).

The threat to this applicant of being severely assaulted, taken seriously ill and/or being reduced to begging will, should one or more materialise, have serious and damaging consequences for him and amount to a very severe intrusion into his private sphere and his right to physical and moral integrity. These rights will be violated by the Government of the United Kingdom as a result of the ceasing the applicant’s and his wife’s entitlement to JSA in breach of regulation 27(1) of the Jobseeker's Allowance Regulations 1996, which provides that entitlement to JSA shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to provide a signed declaration, that he had a good cause for the failure. (As submitted above, on 22 November 2006 the Dellow Centre recorded on the applicant’s wife’s registration form that St Mungo’s, London’s largest homelessness organisation, had informed the Centre that neither the applicant nor his wife could be referred to a hostel “due to not being on any benefits”.)

The applicant has not only been barred from the Whitechapel Mission due to concerns about his safety but has been hospitalised for pneumonia and, in respect of the threat of being reduced to begging, his savings have already been exhausted. Moreover, the Met Office has indicated that this coming autumn and winter will be cooler than last year.

In the case of Sidabras and Dziautas v Lithuania (Nos 55480/00 and 59330/00, para. 49, ECHR 2004-VII), the Court noted the applicants' argument that, as result of the publicity caused by the adoption of the KGB Act and its application to them, they had suffered constant embarrassment as a result of their past activities. The Court accepted that the applicants continued to be burdened with the status of "former KGB officers" affecting the enjoyment of their "private life". The Court stated that "they are marked in the eyes of society on account of their past association with an oppressive regime." Like the position of the applicants in Sidabras and Dziautas v Lithuania, the applicant in the present case will suffer constant embarrassment as result of having been reduced to begging, and will be marked in the eyes of society on account of any criminal record that may follow therefrom.

The applicant also submits that there will be a severe violation of the right to respect for his family life under Article 8. It is well established that this right primarily obliges the state to protect the integrity of the family: to ensure that family relationships develop normally (Marckx v Belgium, (1979) Series A, No. 31, paras 31 and 45) and that members of a family have "the mutual enjoyment of each other's company" (Olsson v Sweden, (1988) Series A, No. 130, para. 59). In Lopez Ostra v Spain (1994), Series A, No. 303-C, at para. 51, the Court found that "severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely …". In the present case, it is submitted that there will be a similar interference with the applicant's family life. Once the applicant is in fact severely assaulted, taken seriously ill, and/or reduced to begging, there will be a profoundly distressing effect on both the applicant and his wife, thereby seriously affecting their relationship in violation of the positive duty on the state to respect his family life.

It is therefore submitted in respect of the applicant that any per se (actual, physical) severe assault, serious illness and/or reduction to begging is in fact a violation of his rights under Article 8 of the ECHR.

NECESSITY OF EXPEDITION

An urgent expedition is necessary in this instance because of the violations of the applicant's human rights already existing and are likely to be even greater. The right that will be violated is the right to private and family life by the threat to the applicant of being severely assaulted, becoming seriously ill and/or being reduced to begging. This would constitute a threat of irreparable and serious harm. Being reduced to begging is a threat that is imminent given that the applicant’s savings have already been exhausted.

IRREPARABLE HARM

Once the applicant is in fact severely assaulted or taken seriously ill, it will become very difficult if not almost impossible for him to pursue his application to the Court and this applicant has of course become subject to human rights violations as previously described.

The applicant has for example had limited access to computers, exacerbated by difficulties with computer access in his local library, Idea Store Whitechapel (see copy of the applicant's letter and enclosures of 16 August 2007 to the London Borough of Tower Hamlets Complaints Team in Supporting Documents, pp. 54-63), and therefore has had no opportunity whatsoever to prepare and lodge any applications prior to this time.

In establishing the extent of the risk to the applicant of ill-treatment, the Court will note that the applicant was assaulted in the canteen of the Whitechapel Mission on 18 February 2007. The applicant complains that it took almost two and a half months for the Metropolitan Police to take his statement in respect of the assault and that when he requested a copy of the statement of 27 April under the Data Protection Act 1998, as advised by the Metropolitan Police Service, it was never provided to him. The applicant submits that the way his case was dealt with by the Metropolitan Police may have been a factor in the assault on his wife in the canteen of the Whitechapel Mission on 18 June 2007, and the subsequent barring of the applicant and his wife from the Mission later that morning.

Should the applicant be reduced to begging, the Court may have to strike the case out, for example because the applicant has failed to reply to Court letters over a period of time (see, Peltonen v Finland, No. 27323/95, 28.9.00 and Yakan v Turkey, No. 43362/98, 19.9.00). The applicant only recently had his use of a landline phone withdrawn by the Sisters of Mercy-run Dellow Centre, the only day centre currently available to the applicant and his wife (see copy of the applicant's letter and enclosures of 26 July 2007 to the chief executive of Providence Row Charity in Supporting Documents, pp. 44-51).

Much longer a period as a rough sleeper is more than likely to subject the applicant to serious ill-treatment and continued violations of Article 8.

SERIOUS HARM

The very fact that the applicant is threatened with a criminal record subsequent to him being reduced to begging, and the devastating repercussions this would have on his career and prospects, is sufficient to demonstrate the serious harm that will result from the failure to adopt an expedition of the applicant’s case against the Government of the United Kingdom.

CONCLUSION

For the above reasons the applicant respectfully requests that the Court indicate the expedition of the applicant’s case to the Government of the United Kingdom.



DECLAN HEAVEY

c/o THE DELLOW CENTRE

82 WENTWORTH STREET

LONDON E1 7SA

UNITED KINGDOM

E MAIL: dheavey@gmail.com

TEL: 0779 284 3167 (mobile)


   September 2007 LONDON