Metropolitan Police succeed in G20 “kettling” appeal

R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 – Read judgment 

The Metropolitan Police has succeeded in its appeal against a Divisional Court ruling (see previous post) that the use of crowd control measures – in this case, containment or “kettling” – against Climate Camp protesters did not constitute “lawful police operations”.

In reaching its decision, the Court of Appeal considered three issues: (i) whether the Divisional Court adopted the wrong approach to the question of whether a breach of the peace was imminent, (ii) whether Chief Superintendent Mr. Johnson’s apprehension that there was an imminent breach of the peace was reasonable, and (iii) whether, on Mr. Johnson’s own evidence, he should not have ordered containment of the Climate Camp.

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Will neuroscience revolutionise the law?

You don’t need to be a brain scientist to see that lawyers would benefit from a more sophisticated understanding of the human brain. Neuroscientists seek to determine how brain function affects human behaviour, and the system of law  regulates how those humans interact with each other. According to a new Royal Society report, lawyers and neuroscientists should work together more.

The report, Neuroscience and the law, argues that neuroscience has a lot to offer the law, for example:

might neuroscience fundamentally change concepts of legal responsibility? Or could aspects of a convicted person’s brain help to determine whether they are at an increased risk of reoffending? Will it ever be possible to use brain scans to ‘read minds’, for instance with the aim of determining whether they are telling the truth, or whether their memories are false?

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“Would Judges like to be told to eff off in court?”… what the police swearing judgment really says

Harvey v Director of Public Prosecutions [2011] EWHC Crim B1 – Read judgment

“What on earth was he thinking?” asks a Telegraph article bearing as its title another rhetorical question, “Would Judges like to be told to eff off in court?”. This is in reference to Mr Justice Bean’s judgment in Harvey v Director of Public Prosecutions in which he overturned Mr Harvey’s conviction under section 5 of the Public Order Act 1986 for swearing at a police officer.

Alarmed at the corrosion of the rule of law and standards of public behaviour that the judgment propagates, the author of the article admonishes Bean J for ignoring the moral and social significance of “such insolent defiance” of the Police.

So, why such disapproval? Continue reading

The law should not become “over precious” about human rights, says the Divisional Court

David Thomas Howarth v  Commissioner of Police of Police of the Metropolis [2011] EWHC 2818 (QB) – read judgment

Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.

A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.

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Times can use leaked Police documents in libel defence

Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC 2705 (QB) (24 October 2011) – Read judgment.

Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL)  should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.

It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.

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Big Brother or crime fighting? DNA evidence under the microscope

DNA database impact on human rightsA proposal to retain DNA samples taken from people who have been arrested but not charged with a crime for up to five years has come under criticism from the Joint Committee on Human Rights.

The committee has been reviewing the Protection of Freedoms Bill for its compatibility with human rights (see our post: Protections of freedom bill under scrutiny and the Committee’s conclusions). The retention of DNA has long been a hot topic.

On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.

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Is the Official Secrets Act about to be used to gag journalism? – Obiter J

Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school.  She was kidnapped and murdered and her body was found in September 2002.  In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff.  When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail.  The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story. 

The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking.  There is a suggestion that the Official Secrets Act 1989 may have been breached.  The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
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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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Will publishing photos of alleged rioters infringe their human rights?

In the wake of the recent violence in cities across England, the police have been releasing photographs of individuals in an appeal to the public for assistance in identifying them and bringing them to justice.

As the crisis has developed, politicians and police spokespeople have professed a strong intention to ensure that all the rioters and looters face the consequences of their actions. As of this morning, in London alone 888 people have been arrested and 371 people have been charged with offences relating to their involvement in the riots, and courts in London, Manchester and Solihull have remained open through the night in order to process these cases as swiftly as possible. Yet with the number of people involved likely to be in the thousands, there are many more who remain unidentified.

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The English riots

England has experienced a fourth consecutive night of rioting and looting in its cities, prompted by the shooting by police of Mark Duggan in Tottenham.

New and social media have seen almost blanket coverage of the events, so I have little to add, save to link to some interesting legal coverage of the issues involving policing policy, blaming social media, vigilante justice, journalists’  rights and paying for damage under riot law.

One issue which sadly has not arisen from these riots is freedom of speech; it would appear that there has been little sense or motive behind the violence following the initial catalyst.

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Does “bringing rights home” mean bringing problems home too?

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

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Police may have duty to inform victims of phone hacking

Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) - Read judgment

The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted. 

This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).

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Retention of DNA breaches human right to privacy, says Supreme Court

R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
A declaration has been granted by a majority in the Supreme Court that police policy of DNA retention is unlawful because it is incompatible with article 8 of the ECHR.

Guidelines under the current legislation allow destruction of DNA evidence only under “exceptional circumstances”; however police can be said to be acting unlawfully in retaining the evidence because the relevant provision of the Police and Criminal Evidence Act (PACE) should be ‘read down’ to accord with the right to privacy under the Convention.

The guidelines on DNA retention were introduced under Section 64(1A) of PACE, which provides that samples taken in connection with the investigation of an offence “may” be retained. The provision thus substituted a discretionary power for an earlier obligation in the statute to destroy data. The guidelines issued by the Association of Chief Police Officers (“ACPO”) guidelines provided that data should be destroyed only in exceptional cases. Continue reading

Climate Camp protesters did not threaten breach of the peace, says High Court

R (Moos and Anor) v The Commissioner of the Police of the Metropolis [2011] EWHC 957 (Admin) – Read Judgment

The High Court has decided that the actions of police in “kettling” climate change protestors during the G20 summit were unlawful.

In the aftermath of the global credit crunch, the second G20 Summit, which was to commence on 2 April 2009, was an obvious target of public frustration and anger in respect of a range of economic and social issues. Thus on 1 April, two large demonstrations took place in the City of London. One was staged near the Bank of England, directed primarily at the (mis)management of the world’s financial markets by banks such as the Royal Bank of Scotland. The other was set up as a “Climate Camp” outside the Carbon Exchange Building in Bishopsgate, and was directed at environmental concerns. Continue reading

“British soldiers go to hell” and free speech

Munim Abdul and Others v Director of Public Prosecutions [2011] EWHC 247 (Admin) – Read judgment

The High Court has ruled that prosecution of a group of people who had shouted slogans, including, “burn in hell”, “baby killers” and “rapists” at a parade of British soldiers, was not a breach of their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights.

Five men were convicted of using threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby (contrary to section 5 of the Public Order Act 1986). The men launched an appeal, raising amongst other things the question of whether the decision to prosecute them for shouting slogans and waving banners close to where the soldiers and other members of the public were was compatible with Article 10.

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