What a week! – The Human Rights Roundup
16 May 2011
Last week’s human rights news received an enormous amount of coverage, which means that we were unable to fit all of them within this humble post. However, we do recommend that you click here to access the full list of some of our favourite articles pertaining to last week’s hotly debated topics.
by Melinda Padron
The week started off with a Twitter account supposedly “outing” a number of individuals who had taken injunctions with anonymity clauses or “superinjunctions”. As we all know, this topic has been the subject of attacks by the press and politicians over the past few weeks. Judith Townend wrote an insightful post on the incident for the Inforrm’s Blog, which contained opinions from media lawyers and experts, and also links to many of the articles featured in newspapers and law blogs alike.
Carl Gardner from the Head of Legal blog voiced his indignation at the coverage and the debate over the superinjunctions issue. He tries to remind the reader of the true spirit of the right to free speech, and arguably speaks some truths about what has driven this hostile campaign against injunctions.
Law and Lawyers reminded its readers that superinjunctions serve other purposes which go beyond protecting the reputation of the rich and famous. It discusses their relevance in the often highly sensitive issues which are dealt with before the Court of protection. There is also a tension here between right to privacy and freedom of expression, as sometimes the very distressing and private issues of a particular case happen to raise questions which are in the public interest. It was suggested in one recent case that the Court of protection should sometimes allow for open hearings. However, in such circumstances, far-reaching reporting restrictions would apply to protect the confidentiality of those involved.
While David Allen Green begs the reader not to get carried away by the media frenzy in his article for the New Statesman, Michael White questions whether the Twitter incident will lead to more openness in his article in The Guardian.
In line with Adam Wagner’s prediction, last week the ECtHR decided against Mosley’s argument that the United Kingdom was in breach of his Article 8 rights by not providing for a legal duty (a “notification requirement”) on the News of the World to warn him in advance of publication in order to allow him to seek an interim injunction. We hope you have not had enough of the Mosley case, as Rosalind English has not only written a commentary to the judgment, but also listed some of the most interesting articles about it.
Undoubtedly the superinjunction saga and Max Mosley’s case raise questions about responsible journalism. Ten days ago we saw His Honour Judge Bellamy criticise the reporting by the Telegraph of a family law case involving very sad facts. HHJ Bellamy called the reporting “unbalanced, inaccurate and just plain wrong”. The Pink Tape blog highlighted the shortcomings of the reporting in light of aspects of the case. Likewise, two newspapers are the subject of an action for contempt of court for their coverage of the search for the killer of Joanna Yates. The coverage of the arrest of a man, who was later released without charge, presented a serious risk of serious prejudice were the man to stand trial. The action is being brought by the Attorney General Dominic Grieve, which gives an indication of the seriousness of the allegations.
It is all well and good for newspapers to promote the right to free speech, and to emphasise the importance of covering issues which are of public interest – one hopes that is the genuine interest behind all of the manifestations against the current law on privacy. However, it must not be forgotten that the exercise of this right by the press carries with it a great measure of responsibility.
Responsible journalism, by the way, is not achieved by simply trying to turn the expression ‘in the public interest’ into some sort of pandora’s box and hope that anything reported can fit right into it. If the press is not satisfied with the courts’ approach to what should be in the public interest, and the courts’ are equally not persuaded by the press’ version of it, where is Parliament in all this?
Also featured in the news last week were the following stories:
– Richard Moorhead reported for the Lawyer Watch blog that the Evans case (our analysis coming shortly) could be the beginning of intense scrutiny over the current government’s austerity measures. The case related to pre-coalition changes in the legal aid funding code which sought to prevent public interest claims from being funded where the applicant gains no direct benefit from the legal proceedings (unless the public interest related to the environment).
There were allegations that the measure was influenced by concerns expressed by Bob Ainsworth, former Secretary of State for Defence, about the consequences an adverse judgment in public interest cases could have for defence, security, and foreign policy interests.
It was decided that it was unlawful for the State to side step judicial supervision by cutting legal aid funding to cases which could have unwelcome and damaging results to government. The consultation process leading to the amendments was also found to be unlawful for failure to disclose the true reasons behind the amendments. See also the UKSC Blog’s account of this judgment.
– The BBC news website reported that two men cleared of murder on appeal are to be awarded compensation after a landmark Supreme Court ruling defined a “miscarriage of justice”. The new test for the award of compensation in such cases should ensure that innocent defendants are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. Rosalind English has posted her analysis of the judgment this morning.
– Professor Eileen Munro’s report on the Child Protection system came out last week. According to the Family Lore blog it stated that the system has become over-bureaucratised and focused on compliance, and expressed that it needs to move on to become one that values and develops professional expertise and is focused on the safety and welfare of children and young people. See Maria Roche’s post on the subject here.
– The ECHR Blog published more documents on the Izmir High Level Conference on the Future of the ECtHR. In particular, it contains a link to Amnesty International’s concerns over the possibility of States using the reform process to address grievances against particular aspects of the Court’s rulings.
And finally, in times of austerity, creativity can go a long way. Find out about some of the ideas to generate funding for pro-bono work here.
In the courts last week:
MOSLEY v. THE UNITED KINGDOM – 48009/08 [2011] ECHR 774 (10 May 2011)
Max Mosley argument that press should pre-notify subjects of salacious stories declared inadmissible by Euro Court of Human Rights.
X, Y, and Z & Anor v A Local Authority [2011] EWHC 1157 (Fam) (11 May 2011)
Journalist wins right to see redacted version of medical expert’s report in controversial family case.
Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 (11 May 2011)
Miscarriage of justice compensation scheme too restrictive. Must include not just cases where defendant found innocent but also where new facts undermine evidence against defendant so no conviction could possibly be based upon it.
Court of appeal: Immigration tribunal was right to prevent deportation of foreign criminal with string of violent and drug offences. Guidance on “error of law”.
Kennedy v The Information Commissioner & Anor [2011] EWCA Civ 367 (12 May 2011)
Should charity commission investigation into Georg Galloway’s 2000s Iraq charity be revealed by FOI request? CoA refers human rights interpretation question back to Information Rights Tribunal.
W v M & Ors [2011] EWHC 1197 (COP) (12 May 2011)
Court of protection judge imposes publication restrictions on case of minimally conscious patient, including Facebook and Twitter.
Latest appeal judgment in mass equal pay litigation against Birmingham City Council. Success for claimants on 3 points. See Richard Moohead’s commentary to this case here.
Man unlawfully detained pending deportation to Iran awarded £75 per day (total £6,150) compensatory damages.
… and don’t forget our recent posts:
- No win no fee and the litigation game – Professor Richard Moorhead May 13, 2011 1 Crown Office Row
- Show us the Supreme Court footage! May 12, 2011 Adam Wagner
- Max Mosley – enough alreadyMay 11, 2011 Rosalind English
- No quick fix for the child protection system May 11, 2011 Maria Roche
- Mosley loses privacy case in Strasbourg May 10, 2011 Rosalind English
- A super-injunction toolkit May 10, 2011 Adam Wagner
- Super injunctions, bin Laden and two key inquests – Human Rights Roundup May 9, 2011 Graeme Hall
- Unelected, underqualified and frankly bonkers May 9, 2011 Adam Wagner
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Many thanks Melina for the mention in this excellent post. Of course the Court of Protection is empowered by statute to impose reporting restrictions. Not strictly a superinjunction case therefore but the tension between arts 8 and 10 is still very apparent.