Keynote speech by Lord Neuberger at 5 RB Conference on the Internet, 30 September 2014
The President of the Supreme Court has delivered a very interesting address on the protections that should be afforded to what might be termed the “new Fourth Estate” – journalism on the internet. The following summary does not do justice to his speech but is meant to act as a taster – download the full text of his talk here.
Lord Neuberger explores the interrelationship of privacy and freedom of expression, particularly in the light of developments in IT, and especially the internet. He recalls a colourful eighteenth century figure who contributed a series of letters to a widely disseminated journal under the pseudonym of “Junius”. He managed to make such effective attacks on public figures he brought about the resignation of the Prime Minister, the Duke of Grafton, in 1770. Because of his anonymity this character was able to make criticisms of the powerful for which others of his time faced prosecution.
Junius offered a voice of firm if sometimes scurrilous criticism, prompting both political and legal change. He is rightly remembered as one of the greatest political writers in an age dominated by great figures, yet his identity [still] remains a mystery.
And it is this lack of traceability that links Junius with today’s bloggers. Print journalists are – with the exception of writers for The Economist – known figures. But forty percent of the world’s population use the internet, and despite initial expectations that bloggers and tweeters could hide behind pseudonyms, it has turned out to be extremely difficult for internet writers to maintain their anonymity. The public and the courts increasingly recognise the press’ interest in publishing the names of individuals in appropriate circumstances. Continue reading
Merlin Entertainments LPC, Chessington World of Adventures Operations and others v Peter Cave  EWHC 3036 (QB) 25 September 2014 – read judgment
This case explores the extent to which a campaign of criticism, conducted by internet and email, can merit restraint by the civil courts. As the judge says, whatever the aims of the campaign in question, its supporters may, in the course of their activities, annoy, irritate, and upset companies and individuals. But should the courts interfere, before the question whether the campaign is justified has been decided? And to what extent is such a campaign a criminal offence?
This particular dispute concerned a series of communications by the defendant to the general public about the inadequacy of safety measures and other shortcomings of the claimants’ amusement parks. The claimants contended that Dr Cave’s communications with the public and with their employees were defamatory, and in breach of confidence, and that they were thereby entitled to stop him, before any trial, by relying on the statutory tort of harassment. They therefore applied for an interim injunction restraining the defendant from setting up websites and sending mass emails regarding the issue of safety in theme parks. The question before the judge was whether they should wait until they had established defamation and/or breach of confidence, before the court granted a remedy. Continue reading
Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment
This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution. In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.
The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point. Continue reading
In his prolific career, writer Ian McEwan has brought us into the minds of physicists, neurosurgeons, conductors, cultural and cold war spies and even stalkers. His most recent triumph is to have stepped deftly into the life of a High Court judge in the Family Division.
The Children Act is a short novel of great subtlety and tenderness. In his acknowledgements he says he has drawn on a “superbly written judgment” by Sir James Munby evaluating a child’s best interests in a dispute over ultra-orthodox education of the child of estranged Jewish parents (see Karwan Eskerie’s post on this case). One can see how McEwan was inspired by the judge’s nuanced approach, in which he sought to balance the significance of social and familial links as against an individual’s wellbeing; after all, a novelist’s job is to explore the nature of unhappiness. How irresistible then is an institutional figure whose very job it is to determine happiness and its opposite? Continue reading
R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills  EWCA Civ 1216 (31 July 2014) - read judgment
The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational eligibility to changes in immigration rules would “enmesh” him into immigration policy:
His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.
This appeal turned on issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.
Q v Q ; Re B (a child) ; Re C (a child)  EWFC 31 – 6 August 2014 – read judgment
Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”. As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:
The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.
All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.
Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service. Continue reading
Hounga v Allen  UKSC 47 – read judgment
The Supreme Court has ruled that victims may in some circumstance recover damages from their traffickers. Overturning the judgment of the Court of Appeal that the illegality of the underlying contract ruled out the claim for compensation, the majority held that to permit the trafficker to escape liability would be “an affront” to public policy. The judgment has far reaching implications in this area because, by its very nature, human trafficking often involves illegality. Both the majority and the dissenters provide an interesting analysis and refinement of the law on illegality; as Lord Hughes observes:
It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimant’s claim to relief.
Conversely, when the illegality is not sufficiently closely connected to the claim, and can properly be regarded as collateral, or as doing no more than providing the context for the relationship which gives rise to the claim, the bar of illegality will not fall, as was decided in this case. Continue reading