Judicial blogging, right to die and Assange – The Human Rights Roundup
20 August 2012
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. 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
With the Olympics over now, there’s been a bit more activity in the legal blogosphere this week. Probably the biggest news is the guidance from the Senior Presiding Judge that may stifle judicial blogging altogether – the guidance requires that a blogging judge be unidentifiable as a judge . In other news, the Free Movement blog features a series of three posts this week discussing the July 2012 changes to the Immigration Rules; locked-in syndrome sufferer Tony Nicklinson loses his High Court case and yet another twist in the tale of Julian Assange emerges.
A step back for prisoner voting?
Two posts on the excellent new Oxford Human Rights Hub this week discuss the European Court of Human Rights’ “step back” regarding prisoner voting in the Scoppola case this week. In the first, Natasha Holcroft-Emmess critiqued the decision as a retreat from the stronger position in earlier cases – specifically in Scoppola the Grand Chamber decided that a judge’s decision was not required to take away a prisoner’s right to vote (contrary to the decision in Frodl [2011]) – legislation could also do this (despite its arguable “general, automatic and indiscriminate” nature, which was what specifically led to a violation of the ECHR in the original Hirst (no.2) case). The second post, by Reuven (Ruvi) Ziegler, who has contributed to this blog in the past ,points out the difficulty reconciling Scoppola with the previously-consistent position of the Court that prisoners enjoy all ECHR rights save the right to liberty.
Judicial blogging banned?
The original guidance was posted on Trevor Coultart’s blog, and while it specifically states that judicial blogging is not banned, it states that members of the judiciary who blog must not identify themselves as judiciary, and must remove any content from their blogs that allow them to be so identified, even if the blog is anonymous (as Internet anonymity is never guaranteed). As pointed out in comments on Trevor Coultart’s post, however, cached copies of offending posts by judges will exist even if deleted, and those who know the bloggers to be judges will not have their memories erased by this guidance.
The guidance has been widely criticised as being draconian and unworkable, by Alex Aldridge of LegalCheek; Judith Townend of MeejaLaw; and ObiterJ, who draws attention to the issues with restriction of the Article 10 ECHR right to freedom of speech, which may be derogated from in these situations, but only where “necessary in a democratic society”, and in a second post contrasts our “guidance” with the much more helpful and positive attitude in the US to legal blogging. NL of NearlyLegal and A Barrister in London both note that judges can write books, give speeches and contribute to print media, and in light of this it’s unclear why blogging is so dangerous as to require strict controls. Bystander of the notable Magistrate’s Blog – probably the most obviously affected blog – is currently reserving judgment on this issue.
Lucy Reed’s post on Pink Tape is particularly recommended, considering that while there might be a good reason for the guidance, we should trust our judges to blog responsibly, especially as judges are specifically those people who we trust to think deeply and consider implications carefully. Both Lucy and our own Adam Wagner lament this guidance, which presents judicial blogging as a threat, rather than a force for good and education.
Changing the Rules
In a series of posts this week, the Freemovement blog hosted a dissection and discussion of the impact of the new July 2012 Immigration Rules. The first post, by Nishan Paramjorthy, talks about the new rules for foreign spouses and partners – in particular, it goes over the minimum earning requirements and some of the more ridiculous consequences thereof. The second, by Pearl Yong, deals with the rules on long residence, in particular the “draconian” requirement of 20 years’ residence in the UK for adults to be allowed permanent settlement in the UK. The third post, by Claire Physsas, discusses perhaps the most interesting issue from a human rights perspective – Theresa May’s attempt to “define” the proportionality requirements under Article 8(2) ECHR, which adopts a definition that courts have previously explicitly rejected.
No immunity from murder charge to end “living nightmare”
Most people will by now be familiar with the case of Tony Nicklinson, the locked-in syndrome sufferer who this week lost his right-to-die case in the High Court. The case is interesting because his is not a “traditional” assisted suicide case – Nicklinson’s condition makes him incapable of anypositive step towards suicide. As discussed in the BBC article on this decision, another person would have to do all the work (meaning the charge would be murder). The case therefore raises some very interesting issues, which are set out by Rosalind English in her preliminary post on the decision. This post also gives a short summary of the judge’s reasoning, which essentially boils down to an acknowledgement of Mr. Nicklinson’s tragic circumstances but a refusal to embark on such a large-scale change in the law, which would be for Parliament to do.
Latest on Assange
Julian Assange remains in the Ecuadorean embassy, and he is untouchable by the British authorities while he is there (not so if he tries to get to Ecuador itself, however). As ObiterJ points out in a characteristically illuminating post, the UK government is caught between the Vienna Convention preventing it from getting at Assange and the European Arrest Warrant (and court decisions) forcing it to extradite him to Sweden.
The UK government has attempted a new strategy to resolve the situation, sending a letter to the Ecuadorean government threatening to withdraw diplomatic recognition of the embassy under Section 1(3) of the Diplomatic and Consular Premises Act 1987 and simply walk in and arrest him. As Carl Gardner of Head of Legal points out in this post, it’s not as simple as that – this action must be permissible under international law (which, under the Vienna Convention, means the UK would need find another place for the Ecuadorean diplomatic mission) and it would be simple for Assange to use this as an opportunity to stall for time via a judicial review action. Ultimately, Gardner thinks that the only way to get Assange out would be to end diplomatic relations with Ecuador and close the embassy – but this is almost certainly overkill.
In defence of the CPS
Last week I posted on the success of Simon Walsh in the Porn Trial, and readers of that post may have noticed heavy criticism of the CPS – in particular, David Allen Green, writing in the New Statesman, called it a “shameful and nasty” prosecution. This week, one commentator – Ben of Garrulous Law – offered a defence of the CPS, saying that it is the “knee-jerk” legislation itself that should be blamed; the CPS was merely fulfilling its duty to prosecute under the law as it stands. Indeed, many of the commentators last week also aimed their criticism at the legislation – but did the CPS go too far even given this duty to prosecute under “bad law”? David Allen Green’s article certainly argues that it did.
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UKHRB Posts
- A tinge of green in our Bill of Rights? 17 August 2012 David Hart QC
- “Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court 16 August 2012 Rosalind English
- Let the judges blog 15 August 2012 Adam Wagner
- A coach and Aarhus through the planning system? Third party rights under scrutiny 15 August 2012 David Hart QC
- Should we be using ‘special’ offences to prosecute crimes against disabled people? – Lucy Series 14 August 2012 Lucy Series
- The triple Olympic detainee 13 August 2012 Adam Wagner
by Sam Murrant
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Thank you very much for the kind references to my blogposts. I discovered a particularly good analysis of all of this at
http://www.ejiltalk.org/may-the-uk-terminate-the-diplomatic-status-of-ecuadors-embassy/
My cap is off to the author (Dapo Akande) for taking the trouble to dig back in to the history of the Diplomatic and Consular Premises Act 1987 and for his detailed and thoughtful analysis.
Embassies are inviolate in international law. Are there any exceptions? I am not sure. Even if our country were to enter into a major war, the foreign embassy concerned would, I think, remain inviolate. Diplomatic relations would be broken but the government must still enable free passage from the UK of diplomats etc. Once they have gone, the power in the 1987 Act could be used to decommission the premises so that they were no longer diplomatic premises.
Is there power to enter an embassy to put an end to very serious criminality? Lord Denning speaking – (as judges sometimes did in Parliament) – thought so. That was in the immediate aftermath of the Yvonne Fletcher murder. (interesting how, in more recent times, the “Law Lords” chose to deny themselves their right to speak in the legislative chamber). At the time when Denning spoke, I recall thinking that his Lordship was saying what many members of the public felt ought to be the law. The government of the day opted for the traditional route of severance of diplomatic relations and the embassy remained inviolate.
However one looks at Julian Assange’s case, it comes nowhere near any Embassy being engaged in serious criminal activity. Any argument that the 1987 actually permits entry in such circumstances must be seriously doubted.