Category Archives: Art. 10 | Freedom of Expression

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European Court of Justice grapples with secret evidence in UK immigration case – Dr Cian Murphy

topsecretfile ECJZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment

The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).

Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.

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The serious lesson hiding behind the Express’s latest rights “outrage”

BMgRvWRCYAEZ-DO.jpg-large12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.

As you might expect, the article is as full of arrant nonsense as the new guide – which can be downloaded for free here – is full of useful information. Nonsense like this:

In a list of examples of past cases, it even cites Islamist cleric Abu Qatada’s successful ­challenge under human rights laws against Home Office attempts to send him back to ­Jordan to face terror charges

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Court lifts anonymity order in David McGreavy case

David McGreavyM, R(on the application of) v The Parole Board and another [2013] EWHC 1360 (Admin) - read judgment

Reporting restrictions on proceedings concerning a life prisoner should be discharged since the public interest in allowing media organisations to publish reports outweighed the prisoner’s human rights.

The claimant had been convicted of the brutal murder of three infant children in 1973. Subsequent to his incarceration in open prison, his movements had come to the attention of the press. Inmates made threats and the claimant was moved to secure conditions.  When he sought judicial review of a decision by the parole board in 2011 (declining his return to open conditions), the judge granted an order restricting reporting of  the claimant’s identity, the details of his offences and his current location.  In this hearing, various media organisations intervened to request the discharge this order. Continue reading →

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Strasbourg ties itself in knots over advertising ban

primate adAnimal Defenders International v  United Kingdom, April 22 2013 – read judgment

In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.

This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,

The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.

….A robust democracy is not helped by well-intentioned paternalism. Continue reading →

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Court awards anonymity for victim of libellous “paedophile” allegations

How-to-Remove-Online-Defamation-Review-Using-Legal-Action-2ZAM v CFW & Anor [2013] EWHC 662 (QB) – read judgment

The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in this case, encapsulated in the memorable description he quoted in an earlier judgment:

 what is to be found on the internet may become like a tattoo.

Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.

This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia.   Continue reading →

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Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – Robert Kellar

121221-university-college-unionMr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment

In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.

The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.

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“More open, more transparent, and more powerful”: communications at the Supreme Court – Dr Richard Cornes

Screen Shot 2013-01-21 at 09.43.46Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like the Guardian and Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?

This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.

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Ban on ‘ex-gay, post-gay and proud’ bus advert criticised but lawful

262332-anti-gay-london-bus-adverts-promoting-gay-cure-techniques-bannedCore Issues Trust v. Transport for London 22 March 2013 [2013] EWHC 651 (Admin) – read judgment.

In a judgment which is sure to provoke heated debate, the High Court has today ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.

The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which describes its aim as “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression” (see website here). It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which was in support of the proposal to introduce same-sex marriage and read “SOME PEOPLE ARE GAY. GET OVER IT!”

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Exclusive: Special Advocates’ open letter and briefing note on secret trials

TopSecretFileOn 26 March 2013 the House of Lords will consider the amendments to the Justice and Security Bill made by the House of Commons.  We have reported on this blog on the Bill at various points in its progress, including on the Special Advocates’ views on the proposals. 

Here, now, is the latest contribution:  a Briefing Note in relation to two key amendments which will be considered next week (covering letter here).  First, whether closed material procedures should only be used as a last resort, if a fair trial cannot otherwise be achieved.  And second, whether the interests of open justice should be weighed in the balance by a Court in considering whether to order a closed procedure.

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Exclusion of Iranian dissident lawful, says Court of Appeal

Maryam-Rajavi2009R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013  [2013] EWCA Civ 199 - read judgment

 Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.

In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants. Continue reading →

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Historical first as Supreme Court boots Iranian bank out of secret hearing

TEST CARD1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post. 

Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.

If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:

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The fundamental right to insult our leaders: Three worrying cases in France, the West Bank and right here

Thanks to Caoilfhionn Gallagher of Doughty Street Chambers for alerting me to this.

The new striker in Real Madrid

The new striker in Real Madrid

Comparing different countries’ legal systems is a dangerous game, but three cases came to light this week which beg to be compared. The criminalisation of criticising political leaders has always been a hallmark of illiberal societies, and it seems that the tradition is still going strong today: in France, the West Bank and the UK too.

First, the European Court of Human Rights ruled that a man should not have been convicted of a criminal offence for waving a placard at (as he was then) President Sarkozy reading “Casse toi pov’con” (“Get lost, you sad prick”). He was prosecuted for insulting the president, an offence under an 1881 Act, even though the phrase was one of Sarkozy’s own, uttered a few months previously. The Court rightly found a violation of the applicant’s rights to free expression protected under Article 10 ECHR, stating that satire, including satirical impertinence:

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Satirical insult of head of state should not be a criminal offence, rules Strasbourg

PRS AUTOCEon v France, no. 26118/10   14 March 2013- read judgment (in French only)

The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.

During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan. Continue reading →

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Terrorism Reviewer: Control Order successor “broadly acceptable”

352676_old_ball_and_chain_series_3David Anderson QC, the Independent Reviewer of terrorism legislation, has released his first report into the operation of Terrorism Prevention and Investigation Measures, introduced in 2011 with the aim of protecting the public from persons believed to have engaged in terrorism, but who can neither be prosecuted nor deported. 

TPIM subjects in 2012 were subject to restrictions including overnight residence at a specified address, GPS tagging, reporting requirements and restrictions on travel, movement, association, communication, finances, work and study. Like their predecessor, control orders, TPIMs have been highly controversial and, as Anderson points out, “vigorously attacked – from opposite directions – by civil libertarians and by the more security-minded.” However, his conclusion is that they are broadly acceptable:  Continue reading →

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Everything you need to know about the secret trials coming to a courtroom near you – Angela Patrick

Justice and SecurityWhile the press (and the rest of us) were preoccupied by the debate on equal marriage and the public dissection of the Huhne marriage, the Justice and Security Bill completed its next stage of passage through the Parliamentary process.    Largely unwatched, a slim majority of Conservative members supported by Ian Paisley Jr., reversed each change made to the Bill by the House of Lords restoring the Government’s original vision:  a brave new world where secret pleadings, hearings and judgments become the norm when a Minister claims national security may be harmed in civil litigation.   

The Bill will return to the Commons for its crucial final stages on Monday.   In anticipation of the debate, the Joint Committee on Human Rights (JCHR) has published a third damning critique of the Government’s proposals.  The cross-party Committee was unimpressed by the Government rewrite of the Lords amendments.  Most of Westminster was busy in Eastleigh and few political commentators flinched.

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