Monthly Archives: August 2011

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Freedom of expression: is filming the police in public a fundamental right? – Hugh Tomlinson QC

As a number of recent cases have made clear, the filming of policing activity in public places is a vital method of holding police to account.  But there have been continuing tensions between the police and photographers over filming police activity. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers.  A campaign called “I’m a photographer, not a terrorist” was launched to protect the rights of those taking photographs in public places.

However, although Guidance issued by, for example, the Metropolitan Police has made it clear that

Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel.

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Hillsborough, Hemming and hostilities – the Human Rights Roundup

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news:

President of the Family Division’s Press Release

Last week the President of the Family Division, Sir Nicholas Wall, issued a press release concerning two judgments in the case Re X which will soon be released in full (save for the identities of the children) to the public. The case involves allegations by a woman who her former partner abused her child and consequently custody issues. There was public support for the woman involved in the proceedings, and amongst these supporters were John Hemming MP (who used parliamentary privilege to name the woman despite the confidential nature of the proceedings) and Christopher Booker (a reporter for the Telegraph).

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There’s no place like home… if you have one

There are somewhere in the region on 12 million people worldwide who have no nationality. Being stateless can create enormous problems, from being unable to rely on diplomatic assistance to having no home country with an automatic right to return to. The risk to stateless of people of having their human rights breached to is great. The United Nations has expressed its concern repeatedly, and is encouraging states to sign up to two conventions which provide basic rights to those without a state.

Back in March we considered a case where a man claiming asylum alleged that he was a member of a particular ethnic group which, it was accepted by the parties, is at risk of persecution in Kuwait. His claim failed as the court found him to be Kuwaiti. However, because he had no documents to show he was Kuwaiti, the Kuwaiti authorities would not allow him to enter their state. Hence the Catch-22 situation of many stateless people, where they cannot establish a right to reside in one state but have no other state to return to.

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President of Family Division’s press release on paedophile allegations case

With thanks to the Judicial Press Office, below is the full press release from the President of the Family Division in a case involving a “super injunction”, John Hemming MP, false allegations of pedophilia and some poor press reporting.

I will blog about this once the full rulings are released, but in the meantime see Lucy Reed: Bared Teeth – Grrrrr! | Pink Tape; Inforrm; News: Hemming MP’s “super injunction victim” named as sex abuse fabricator « Inforrm’s Blog, and the Fighting Monsters blog: Hemming and Haigh – The Journey of an Injunction.

Press Release from the president of the Family Division: Re X  (a child)

I am today giving two judgments, both of which will be in open court.

The first judgment will put into the public domain matters which, in care proceedings under the Children Act 1989 Parliament has decided are normally confidential to the court and to the parties. The second will explain why I have found a woman called Elizabeth Watson in contempt of court. After giving the second judgment. I will adjourn to hear any mitigation Ms Watson may wish to put forward as to why I should not send her to prison.

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Anemometers, environmental information, and legal advice: the Planning Inspectorate’s duty to disclose?

Case EA/2010/0204 Robinson v. Information Commissioner & Department for Communities & Local Government, First-Tier Tribunal, 19 July 2011

This interesting decision of the First-Tier Tribunal (not linked to this post, for reasons I shall explain below) goes to the circumstances in which a public authority can refuse under environmental information rules to disclose legal advice received by it. All lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest. Under the exemptions in the Environmental Information Regulations  privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.

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Human rights on tour

The Human Rights Act has been blamed for many things, but recent suggestions that it caused a series of riots were tenuous by any standards.

A major problem with human rights law is that there is so much disinformation in the public domain. Thankfully, the British Institute on Human Rights is going on tour to try to correct the balance. The organisation is visiting 16 venues around the UK from September to December, seeking to answer the following questions:

What’s the role of human rights in a period of cut backs to public services? What is the role of human rights in protecting the vulnerable? Do human rights offer an effective tool for people wishing to challenge the impact of service cuts or changes? How do we make sure we balance one person’s rights against the interests of society as a whole?

The full list of venues and dates here and you can book here.

 

 

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Reason resumes after a riotous August? – The Human Rights roundup

Immanuel Kant

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news:

First, we welcome to the legal blogosphere RightsNI, a new blog relating to human rights issues in Northern Ireland. Human Rights in Ireland wrote a short introduction to the new blog which can be found here.

The UK riots

Now back to August’s hot topic. Last week blogger Charon QC quoted Immanuel Kant: “All our knowledge begins with the senses, proceeds then to the understanding, and ends with reason. There is nothing higher than reason.” Recognising the value of reason in the context of the riots, Charon QC posted several links to various articles which reflect on the events in the midst of all the confusion.

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University funding, Scotland and a question of equality

Public Interest Lawyers (PIL), a solicitors’ firm, is planning to bring judicial review proceedings to challenge the Scottish government’s university funding scheme, which allows Scottish universities to charge students from other parts of the UK fees, while students from other parts of the EU and Scotland are not charged fees. 

Currently, non-Scottish students from elsewhere in the UK and Northern Ireland have to pay tuition fees in Scotland, set to rise to up to £9,000 annually next year. However, Scottish students and those from other parts of the EU do not have to pay fees at all. Non-British EU students do not have to pay fees in Scotland due to EU law forbidding them from being treated differently to Scottish students.

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Equality and Human Rights Commission reverses position on religious cases intervention

The Equality and Human Rights Commission (EHRC) has reversed its plans to intervene in two European Court of Human Rights cases about religious discrimination. 

Last month the Commission announced that it would intervene in European Court of Human Rights cases on behalf of religious believers who failed to convince the UK courts that they were being discriminated against in the workplace. Two of the proposed interventions – in which the EHRC proposed a “reasonable accommodation” for religion and belief cases (an idea proposed on this blog by Aidan O’Neill QC) – courted controversy, as Alasdair Henderson explained in his post, A leap of faith?

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The recent disorder: bail and sentencing – Obiter J

Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder.  Many cases have already been sentenced either in the Magistrates’ Court.  A lesser number of cases have been dealt with by the Crown Court.  (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).

In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts).  The use of “lay benches” has been very much the exception.  The reason for that is not entirely clear at this time.

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Will evicting rioters be a bear patrol?

In a 1996 episode of The Simpsons, a bear frightens residents of Springfield by strolling down from the mountains. Homer rallies an unruly mob and convinces the town mayor to create a state of the art Bear Patrol, including branded stealth bombers. All is well until Homer receives his pay cheque, which includes an additional $5 “bear tax”. 

Which of the proposed responses to this month’s rioting and looting will be a bear patrol, that is a disproportionate and expensive response prompted by an unruly mob of citizens demanding action?

Alongside the human rights review of every public sector organisation, an early candidate is the plans to create a new discretionary power of possession to enable landlords to take swifter action to evict their most anti-social tenants. The government consultation is open until 7 November; see also this letter from Grant Shapps MP explaining the change .

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Are human rights to blame for the riots?

Many explanations have been proposed for the recent British riots, including poor policing, Twitter and violent video games. Yesterday, the Prime Minster suggested that the Human Rights Act is to blame.

In a major speech, he said that when considering questions of attitude and behaviour, “we inevitably come to the question of the Human Rights Act and the culture associated with it“. What is “exerting such a corrosive influence on behaviour and morality“? No less than “the twisting and misrepresenting of human rights in a way that has undermined personal responsibility“.

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Guest post: Will the Detainee Inquiry be human rights compliant? A JUSTICE reply – Eric Metcalfe

A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.

In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.

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Al-Skeini may open door to more war claims

The recent European Court of Human Rights (ECtHR) judgment in Al-Skeini will certainly enter the Court’s hall of fame as a landmark judgment for pushing the boundaries of the European Convention on Human Rights’s jurisdiction. While it may take us some time to appreciate the full implications of this judgment, one of its possible consequences is the potential opening of the Court’s doors to claims arising from international armed conflicts.

In Al-Skeini, the ECtHR determined that there may be instances when the European Convention on Human Rights may apply outside the ‘espace juridique’, that is the Convention’s ‘legal space’, or within the territories of the Convention’s member states (see Alasdair Henderson’s post on the ruling, which concerned Article 1 of the Convention). This may occur when agents of a member state are exercising authority and control over individuals (personal rather than strictly territorial control) within a given territory upon which that same member state is exercising some public powers. Accordingly, in the case of Al-Skeini, the Convention was found to be applicable to actions taken by British troops in Basra (Iraq), where the UK assumed the exercise of some of the public powers normally exercised by a sovereign government (see paras. 149-150 of the judgment).

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It’s (nearly) all about the riots – The Human Rights Roundup

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Riots

Theft, assault, arson and death: the result of riots not seen in the UK in recent memory. Despite the shocking scenes, communities have united and even the courts have worked 24 hours a day, seven days a week to process those charged. Unsurprisingly, the blawgosphere has been prolific in its coverage, and Adam Wagner provides a summary of useful articles here.

Whilst calm appears to have returned to our streets, further outcry was brought to the nation’s living-rooms when the historian David Starkey provocatively pronounced on Newsnight that “the whites have become black”. However, deploring the lawlessness and imploring calm, David Allen Green takes a more considered approach, noting in the New Statesman that “the participants in the disorder came from a range of social and employment backgrounds.”

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