Much has been said about our surveillance law and much more will be said in Parliament’s debate on Thursday. And yet, how we talk about surveillance law merits at least as much concern as what we say about it. Over-intrusive government surveillance is a problem. But so too is loose language in opposition to it.
The Oxford English Dictionary (Online) describes a ‘snooper’ as ‘one who pries or peeps; spec. one who makes an intrusive official investigation. orig. U.S.’ So it is, at best, an American term for an officious busy-body and at worst someone prying or peeping. This is hardly an administrative accolade or term of endearment – unless one has rather curious definitions of government and/or courtship.
Further etymological investigation reveals that the term ‘to snoop’ is Dutch in origin, and one use would be to describe a servant “slyly going into a dairy room and drinking milk from a pan.” It seems a Dutch Downton Abbey would have even more intrigue than the English one does. For none of these definitions or descriptions would we want Parliament to legislate. No-one is on the side of the ‘snooper’. Continue reading
Chiragov and Others v. Armenia (App No 13216/05) – read judgment
In two important decisions, the Grand Chamber of the Strasbourg Court has held that the forced displacement of peoples from the disputed region of Nagorno-Karabakh during the armed conflict between Azerbaijan and Armenia constituted a violation of Article 1 of Protocol 1 (right to the peaceful enjoyment of property) and Article 8 (right to a private and family life) of the European Convention on Human Rights.
The case of Chiragov which concerned the forced displacement of Azerbaijani nationals was decided in parallel with the Grand Chamber judgment in Sargsyan v Azerbaijan (found here). Sargsyan was delivered on the same day and reached the same conclusions in respect of Armenian nationals forced to flee from Azerbaijani territory. Continue reading
British Academy of Songwriters, Composers and Authors and others, R(on the application of) v Secretary of State for Business, Innovation and Skills and another  EWHC 1723 (Admin) – read judgment
An exception to copyright infringement for private use has failed to survive a challenge in the High Court. But this may not be the end of the story. Although he accepted part of the claimants’ contentions, Green J observed that
the Claimants’ argument does not sit well or easily with the very unusual and particular circumstances which have led to the decision to introduce the private use exception in the first place. These are that the advent of digitalisation has led to a market where device sellers and consumers assume they may copy and where rightholders have not sought private law remedies against infringers.[my italics]
It is a particular feature of this case that there is a widespread consensus that the law has signally failed to keep up with market reality and with reasonable consumer expectations and indeed has been brought into disrepute by its condemnation as illegal of activities which are now accepted by consumers as lawful and which in actual fact form the basic commercial premise upon which copying and storage devices are actively sold throughout Europe.
Having upheld a small part of the challenge, Green J will now hear submissions as to what flows from this conclusion and from the judgment generally. In particular he will hear submissions as to whether any issue of law that he had decided should be referred to the Court of Justice and if so as to the question(s) that should be asked. Continue reading
R (Victor Nealon) v Secretary of State for Justice : R (Sam Hallam) v Secretary of State for Justice  EWHC 1565 (Admin), 8 June 2015 – read judgment
As Michael Gove contemplates the future of the Human Rights Act 1998, the High Court has considered how far the presumption of innocence in Article 6(2) ECHR spreads into decisions on payment of compensation for a miscarriage of justice. In doing so, Burnett LJ also managed to find some less than complimentary sentiments about the Strasbourg court’s decision-making.
Sam Hallam was convicted of murder in 2011. Victor Nealon was convicted of rape in 1997. Both successfully appealed against their convictions and then applied to the Secretary of State (‘SoS’) for compensation under s133 of the Criminal Justice Act 1988 (the ‘1988 Act’’), as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (the ‘2014 Act’). Both men were refused compensation on the basis that their circumstances did not meet the s133 statutory test (as amended). Continue reading
Lambert and Others v. France (application no. 46043/14) – read judgment
In an important step away from Pretty v UK, the Grand Chamber of the Strasbourg Court has upheld the right of to die with dignity by ruling that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights if artificial nutrition and hydration were to be withdrawn from a patient in a persistent vegetative state.
Although the facts were very different, it is heartening to see Strasbourg at last allowing the argument that the state’s obligation to protect life also involves a duty to respect people’s rights to exit life with dignity. The importance of this ruling cannot be underestimated, as can be seen in the ferocity of dissent set out in the Separate Opinion annexed to the judgment (discussed at the end of this post.)
The case involved a challenge by some of the patient’s family members to a judgment delivered on 24 June 2014 by the Conseil d’État which authorised this step. The following summary of the facts and judgment is based on the Court’s press release.
Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. At the time of this hearing he was in the care of a hospital which specialises in patients in a vegetative or minimally conscious state.In 2011 his condition was characterised as minimally conscious and in 2014 as vegetative. He receives artificial nutrition and hydration which is administered enterally, through a gastric tube. Continue reading
This week’s Round-up is brought to you by Alex Wessely.
In the news
In a written statement the legal aid minister Mr Shailesh Vara confirmed that a further 8.75% will be cut from the criminal legal aid budget in 2015. The legal profession has reacted with dismay. Andrew Caplan, president of the Law Society has stated his “deep concern” and published an open letter to the lord chancellor arguing that the cuts “undermines the role of criminal legal aid solicitors in our justice system”. He also points to December 2014 research which shows that young legal aid lawyers are a “dying breed”, something which the most recent cuts will not help to alleviate. Elsewhere, Jonathan Black – president of the London Criminal Courts Solicitors’ Association – has also expressed his bitter disappointment: “There is no further fat to be cut, let alone meat or skin – we are cutting deep into the bone.” Alistair Macdonald QC, chairman of the Bar Council, also expressed his “serious concerns”. Last month, 96% of criminal barristers voted for industrial action if these planned cuts went ahead. Continue reading
British legal history has long inspired the common law world. The Magna Carta, an 800-year-old agreement between a King and his barons, remains an icon of liberty, seen around the world as the foundation stone of the rule of law. In contrast, British law on online surveillance and privacy has been arcane and obscure – a field that is for reluctant experts if it is for anyone at all.
The law has largely been developed in reaction to external pressure. The Regulation of Investigatory Powers Act 2000 was the result of a series of judgments of the European Court of Human Rights. The Data Retention and Investigatory Powers Act 2014 was rushed into law after an EU Court of Justice ruling. This piecemeal approach provides a poor basis for investigatory powers and a worse one for privacy rights.
Momentum towards change has been building. The Edward Snowden revelations brought to an end the public’s ignorance – or quiet endurance – of state surveillance operations. So, although last year’s emergency law permits ongoing data surveillance, it also put in motion a review of the powers of intelligence and law enforcement agencies. Continue reading