Othman v Secretary of State for the Home Department , 6 February 2012 – read judgment

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in this bail hearing.  He is not the author of this post.

Mitting J has ruled that in the light of the recent Strasbourg ruling that the appellant could not be returned to Jordan,  his detention could not continue. Under the so-called “Hardial Singh” principles, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose, and the deportee may only be detained for a period that is reasonable in all the circumstances:

 If before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.

The Strasbourg test also requires that detention should only be for the purpose identified in Article 5(1)(f): removal or deportation. And in Lumba  Lord Dyson observed at para 119 that there was

a close analogy between the Hardial Singh principles and the article 5 requirement that detention for the purposes of deportation must not be of excessive duration (see our post in this case)

Applying this reasoning to Othman’s case, Mitting J could “not conceive of circumstances -

 arising in a SIAC case in which detention might be unlawful on Hardial Singh principles, but deprivation of liberty permissible under article 5. It seems to me that, in practice, the two stand or fall together.

So although he found that in view of the threat to national security posed by the appellant, that the long period of detention had not in itself been unlawful,  the Strasbourg Court’s recent finding that he could not be deported to Jordan meant that for the time being at least one of the key Hardial Singh requirements was not fulfilled, i.e. detention for the purpose of deportation.

Unless the United Kingdom Government is prepared to accept the political and reputational cost of defying a judgment of the Strasbourg Court, deportation would not be possible

There who some who argue, persuasively and correctly in the view of the author, that such a step would only have reputational consequences, not legal ones. That controversy apart, Miting J took a very interesting view on the likelihood of the appellant’s deportation. One was the possibility of the Strasbourg Fourth Section’s judgment being reversed in the Grand Chamber. The other was the negotiations undertaken after that judgment was handed down by the British government with Jordan in order to secure Othman’s safety if he were to be deported.

Those factors mean, in my judgment, that, as of today, it is not apparent that the Secretary of State will be unable to effect deportation within a reasonable period. The chances of her doing so are clearly slimmer than they were before the Fourth Section delivered its judgment, but they are not negligible….Accordingly, applying Hardial Singh principles, in my judgment, all four of the propositions required to be established to justify continued detention exist. It also follows that, under article 5, because to all intents and purposes the conditions are the same, the continued deprivation of liberty remains lawful.

However, the judge had to acknowledged that the time would arrive “quite soon” when continued detention or deprivation of liberty could not be justified under either domestic or article 5 principles. Therefore he was bound to readmit the appellant to bail on highly restrictive terms. If after the elapse of three months the Secretary of State is not able to provide evidence of demonstrable progress in negotiating satisfactory assurances with the Government of Jordan, which satisfy the reservations of the Fourth Section, then it is “very likely” that Mitting J would conclude that continued deprivation of liberty would no longer be justifiable.

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Stott v Thomas Cook Operators and British Airways Plc [2012] EWCA Civ 66 – read judgment

If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight.  Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.

The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.

Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.

This case demonstrates that, in spite of an array of fierce consumerist legislation, air passengers have no cause of action for damages if their feelings are injured in the course of boarding.

The claimants

Mr Stott was not allowed to sit next to his wife, who was responsible, amongst other things, for catheterising him. As he boarded the plane, his wheelchair overturned and he fell to the cabin floor. the judge granted a declaration that Thomas Cook had breached Mr Stott’s rights under the EC Disability Regulation but dismissed the claim for damages by reference to the Montreal Convention. Thomas Cook does not challenge the declaration, but Mr Stott appeals against the rejection of the claim for damages. But for the Montreal Convention, the judge would have awarded damages in the sum of £2,500 for injury to feelings.

Mr Hook suffers from mobility and learning disabilities. On 26 July 2008, accompanied by members of his family, he flew with BA from Gatwick to Paphos, returning on 10 August. On both flights seating arrangements which had been promised by BA in advance did not materialise. As a result his needs as a disabled person were not met. This created difficulties for him and his family. They all found the flights very distressing and they have resolved not to fly again. In response to Mr Hook’s claim for damages and a declaration pursuant to the EC Disability Regulation and the UK Disability Regulations, BA was able to strike out the damages claim by reference to the Montreal Convention.

European Rights versus International Aviation

The problem is, as ever with European legislation, is that it does not speak with one voice. In 2006, a regulation was introduced to deal with claims by disabled passengers, which required immediate implementation into domestic law, duly enacted by the UK in the  Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007. As the judge puts it

…the battle lines are drawn. BA and Thomas Cook seek to rely on the Montreal Convention and its reception into EU law by the Montreal Regulation. Mr Hook and Mr Stott seek to rely on the EC Disability Regulation and Regulation 9 of the UK Disability Regulations. The Montreal regime is part of a longstanding internationally agreed structure which includes restrictions and limitations on liability. The EC Disability Regulation and the UK Disability Regulations are part of a European innovation in the field of anti-discrimination legislation.

In this appeal the claimants, supported by the intervening secretary of state, contended that the Regulation and the Regulations were complementary to the Montreal Convention and that as they concerned the prevention of disability discrimination, which the Montreal Convention was not concerned with, they were entitled to claim damages for injuries to feelings that arose through a breach of their rights as disabled air passengers. Their appeals were dismissed.

The Court’s reasoning

It was clear from the authorities (Abnett v British Airways Plc [1997] A.C. 430 and Barclay v British Airways Plc [2008] EWCA Civ 1419) that  the Montreal Convention had exclusivity in domestic law. At its highest, the appellants’ case was that protection against discrimination on grounds of disability was a fundamental right recognised by EU law and which had to be effectively enforced. However, the Regulation did not say that a compensatory remedy was mandatory. The emphasis under it and the Regulations was on penalties.  In the United Kingdom reg.3 and reg.4 of the Regulations provided a criminal sanction for breach of the obligations imposed by the Regulation with the Civil Aviation Authority as the designated enforcement body.  Such combinations of criminal sanctions and administrative complaints machinery did not conflict with the Montreal Convention which was solely concerned with civil liability and damages. It could not be said that only by permitting a civil claim for damages for injury to feelings was it possible to ensure that the rights created by the Regulation and its enforcement were effective, proportionate and dissuasive. It was incumbent on the court to construe EU and domestic legislation so as to avoid a conflict with the Montreal Convention. That militated strongly against a conclusion that, in order to be effective, proportionate and dissuasive the remedial structure had to embrace something which would bring it into conflict with the Montreal Convention. It was impossible to conclude that the Regulation and the Regulations represented a new departure in protective legislation which now occupied legal space left vacant by the Montreal Convention. Once one was within the timeline and space governed by the Convention, it was the governing instrument in international, European and domestic law. It was open to the EU and domestic legislatures to develop the law in relation to such things as the improvement of access for disabled passengers and assistance to passengers affected by delays or cancellations, provided that they did not trespass into the domain of the Convention; which they had. In identifying that domain, it was not appropriate to apply a novel approach to the construction of the Convention by reference to a perceived second strand or sea change in the European instruments. Accordingly the real injuries to the appellants’ feelings were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies; their claims for compensation for injury to feelings could not succeed.

So, International Aviation – 1, Passengers – Nil. The position is aptly summed up in a US passenger compensation case, in which the Judge Sotomayar referred to a submission on behalf of the plaintiffs that a decision against them would “open the doors to blatant discrimination aboard … flights, invoking images of airline passengers segregated according to race and without legal recourse”. In rejecting the submission, she referred to the case of Turturro, 128 F. Supp 2d at 181, and cited this passage:

The [Montreal] Convention massively curtails damages awards for victims of horrible acts of terrorism; the fact that the Convention also abridges recovery for … discrimination should not surprise anyone.

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This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.

Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2 – Read judgment / press summary

The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under article 2 of the European Court of Human Rights (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.

My initial thoughts are that this is potentially very important, and follows on from Savage in gradually expanding the reach of Article 2, and therefore the liability of mental health hospitals to patients and (as was crucial in this case) their families. The court observed that Ms. Rabone, who committed suicide after being granted 2-days of home leave by the hospital, could have been detained under the MHA in any event, so the distinction between a voluntary and detained patient was of form rather than substance.

Nonetheless, the decision appears to endorse an “each case on its own facts” approach, and will affect human rights damages claims and arguably so-called article 2 inquests too. Here is a particularly quotable line from Lady Hale at paragraph [92]:

“There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage…”

We will follow up in the next few days with a full analysis of the decision. In the meantime, the following summary is taken from the Supreme Court’s press summary (nb. this was the second decision to be tweeted by the Supreme Court’s new Twitter account):

Ravat (Respondent) v Halliburton Manufacturing and Services Limited (Appellant) (Scotland) [2012] UKSC 1 – read judgment

The Supreme Court has ruled that an industrial tribunal does have the jurisdiction to consider a case of unfair dismissal of an employee who worked some of the time in Libya, job-sharing with another of the company’s employees. The company itself is a UK subsidiary of a US corporation.

The following is based on the Supreme Court’s press release. Numbers in square brackets refer to the paragraphs in the judgment.

Background to the case

The issue was whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas. The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation. It supplies tools, services and personnel to the oil industry. Mr Ravat lives in Preston, Lancashire, and is a British citizen. He was employed by the Appellant from April 1990 until May 2006, when he was made redundant. He complains that he was unfairly dismissed. At the time of his dismissal he was working in Libya. The question is whether the employment tribunal has jurisdiction to consider his complaint.

Mr Ravat’s employment documentation described him as a UK commuter. He worked for 28 consecutive days in Libya, followed by 28 consecutive days off at home in Preston. He was job- sharing, working back-to-back with another employee. Some of the Appellant’s employees were accorded expatriate status, but that was not done in Mr Ravat’s case because he did not live abroad full-time. His travel costs were paid for by the Appellant. The work that Mr Ravat carried out in Libya was for the benefit of a German associated company of Halliburton Inc. His salary was paid in Sterling to a UK bank account, and he paid income tax and national insurance on the PAYE basis.

An employment tribunal sitting in Aberdeen held that it did have jurisdiction. That decision was set aside by the Employment Appeal Tribunal. Mr Ravat appealed, and the Inner House of the Court of Session allowed the appeal. The Appellant now appeals to the Supreme Court.

Judgment

The Supreme Court unanimously dismissed the appeal and remitted the case to the employment tribunal to deal with the merits of the respondent’s claim that he was dismissed unfairly. The judgment is given by Lord Hope.

The Court’s reasoning

Section 94(1) of the Employment Rights Act 1996 sets out the right of the employee not to be unfairly dismissed and section 230(1) sets out the definition of ‘employee’. They do not contain any geographical limitation, nor is any such limitation to be found anywhere else in the Act [3]. Yet it is plain that some limitation must be implied: section 94(1) cannot apply to all employment anywhere in the world [4].

In Lawson v Serco Ltd [2006] UKHL 3, Lord Hoffmann identified three categories of employees who would fall within the jurisdiction of the employment tribunal: employees working in Great Britain; peripatetic employees where the employee is ‘based’ in Great Britain; and, in some exceptional cases, expatriate employees [9-12]. But it would be difficult to fit Mr Ravat’s case into any of Lord Hoffmann’s categories [13]. The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunal’s judgment [25]. The question in each case is whether section 94(1) applied to the particular case, notwithstanding its foreign elements. It is not for the courts to lay down a series of fixed rules where Parliament has decided not to do so. Their role is rather to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles [26].

The starting point is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive, but that is not an absolute rule [27]. In some cases, an exception can be made because the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them [28]. But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they are not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. In this case, the fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous.

The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain [29].

In this case, Mr Ravat was working in Libya, for a different Halliburton associated company which was based in Germany, and the decision to dismiss him was taken by an individual based in Cairo. But all the other factors point towards Great Britain as the place with which, in comparison with any other, Mr Ravat’s employment had the closer connection [30]. The Appellant’s business was based in Great Britain. It treated Mr Ravat as a commuter, which meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him [31]. Although it was not open to the parties to contract in to the jurisdiction of the employment tribunal, factors such as any assurance that the employer may have given to the employee regarding the applicability of UK employment law, and the way the employment relationship is then handled in practice must play a part in the overall assessment [32]. On being assigned to Libya, Mr Ravat was assured that UK employment law would apply to his contract. The documentation he received reflected this, and in fact matters relating to the termination of his employment were handled by the Appellant’s human resources department in Aberdeen [33-34]. As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact-finder. In the circumstances of this case, section 94(1) must be interpreted as applying to Mr Ravat’s employment, and the employment tribunal therefore has jurisdiction to hear his claim [35].

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Michael Alexander SECKERSON and TIMES NEWSPAPERS LIMITED against the UK Applications nos. 32844/10 and 33510/10 – Read decision / press release

The European Court of Human Rights has rejected as “inadmissible” Times Newspaper’s challenge to its 2009 conviction for contempt of court. The decision, which was made by six judges, is a good example of an early stage “strike-out” by the Court which is nonetheless a substantial, reasoned decision (see our posts on the “UK loses 3 out of 4 cases at the court” controversy).

It has been a bad 24 hours for The Times, with its editor being recalled to the Leveson Inquiry into press ethics yesterday to answer questions about the hacking of a police blogger’s email account to reveal his secret identity, and subsequent disclosure (and lack thereof) to the High Court. Ultimately, James Harding appeared to blame the Times’ now-departed in-house lawyer as well as “legal privilege” – see Professor Richard Moorhead’s excellent post on the ethical issues surrounding this.

Returning to 2007, Mr Seckerson, the other applicant to the European Court, sat on a jury in 2007 involving the conviction of a childminder for killing a baby by violently shaking it. He was interviewed by The Times, which published the following quotes: “…the consensus was taken three minutes after the foreman was voted in. It was 10-2 against, all based on the evidence. After that, there was not going back” and “Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense”.

The following summary is taken from the Court’s press release:

Following interviews by the police and an application by the Attorney General, the two applicants were found guilty of contempt of court under section 8 (1) of the 1981 Contempt of Court Act, which prevents certain details of jury deliberations being disclosed or published. They were fined and Times Newspaper company was ordered to pay costs of over 27,000 GBP.

The judge emphasised the need to keep secret the deliberations of juries, given that jurors’ confidence to express views depended on their knowledge that the views would not be revealed outside the jury room.

Relying on Article 10, the applicants complained that the finding of contempt of court, the fines imposed and costs ordered were incompatible with their right to freedom of expression.

Admissibility

The Court recalled that freedom of expression was one of the essential foundations of a democratic society and that in that context the safeguards guaranteed to the press were particularly important. However, Article 10 of the European Convention on Human Rights did not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters on serious public concern.

The Court emphasised that rules imposing requirements of confidentiality of judicial deliberations played an important role in maintaining the authority and impartiality of the judiciary, by promoting free and frank discussion by those who were required to decide the issues which arose. It was therefore essential that jurors be free to air their views and opinions on all aspects of the case and the evidence before them, without censoring themselves for fear of their general views or specific comments being disclosed to, and criticised in, the press.

It reiterated its previous finding in the case of Gregory v. the United Kingdom, 25 February 1997, § 44, that the rule governing the secrecy of jury deliberations was a crucial and legitimate characteristic of English trial law which served to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors. It concluded that even an absolute rule could not be viewed as unreasonable, given that any qualification would necessarily lead to an element of doubt which could undermine the very objective which the rule sought to secure.

As to whether the disclosures by the applicants in the case offended against the secrecy of the jury deliberations, the Court first observed that it was not being asked to examine the rule in circumstances involving a conviction for research into jury methods or in a case where the interests of justice could be said to require the disclosure of the jury’s deliberations.

It noted that the published comments had revealed the opinions of the majority 10 jurors in the childminder’s case at an early stage of a long deliberation, had revealed Mr Seckerson’s assessment of their opinions and statements and had disclosed their approach to the evidence in the case. The Court was satisfied that these disclosures had breached the secrecy of jury deliberations.

Consequently, the UK courts’ finding the applicants guilty of contempt of court, the imposition of the fines on both applicants, and the award of costs against the second applicant had been proportionate to the legitimate aim of maintaining the authority and impartiality of the judiciary, and necessary within the meaning of the Convention.

The Court decided to join the applications and declared them inadmissible.

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Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog.  Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.

The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.

The decision that he must now be released on bail after over six and a half years detention without trial and with no real prospect of his future removal from the United Kingdom is very much based on our own home-grown laws and traditions. It is certainly not due to the Human Rights Act.

After all, indefinite detention is not something one would normally associate with the British. The attorney general, Dominic Grieve, said on Tuesday morning in response to the Abu Qatada bail decision that the UK does not have “indefinite internment without trial”. Unfortunately, he is wrong. The word ‘indefinite’ means without fixed limit, not definite or until further notice. An increasing number of foreign nationals are in fact detained indefinitely.

For centuries we have proudly defined ourselves as different to the Other of the absolute monarchies of the ancien regime and the communist and fascist ideologies that infected the twentieth century in so many parts of the world. Orwell’s 1984 and the works of Kafka make us glad to be British, safe from such horrors.

Smug this may be, but also largely justified.

The great English charter of liberty, Magna Carta, sets out the right to freedom from arbitrary detention:

‘No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.’

Liberty was also a theme to the seminal Bill of Rights of 1689, where Parliament complained of excessive bail in criminal cases being used ‘to elude the Benefitt of the Lawes made for the Liberty of the Subjects’, illegal prosecutions and illegal and cruel punishments being inflicted.

We pride ourselves on being the birthplace of habeas corpus, an ancient legal protection against detention without trial. The words mean literally ‘you may have the body’ and an application requires the custodian of the named person to produce that person in court and account for why he or she is detained.

These freedoms were hard-won. Maintaining them is also hard, though, and many will not realise that it is a constant unseen battle against encroachment to do so. The rule of law is by its nature universal or it is nothing, and unpopular minorities are always the first to feel the hand on their shoulder: Jews, gays, the Irish, travellers and Gypsies and now immigrants.

It may surprise some that the writ of habeas corpus is alive and kicking. Once used as protection by noblemen against a tyrannical monarchy, today it is used on behalf of foreign nationals to require the Crown to account for imprisonment without end. This is the situation in which a growing number of foreign nationals find themselves, some of them desperate to leave but prevented from doing so by the international bureaucracy of borders.

Back in 1983, before we had all become so habituated to detention without end, Mr Justice Woolf (as he was then) held in Hardial Singh, one of the first modern uses of the writ of habeas corpus, that a period of five months of immigration detention was unjustified. Today, five months is sometimes considered too short a period to bother to challenge. The small charity Bail for Immigration Detainees reports that the number of long term immigration detainees is constantly growing. A recent inspection report showed that over 25% of foreign national prisoners have now been detained under immigration powers for over a year, with the average length of detention increasing to over six months. The latest Home Office statistics showed that 36 individuals had been detained under immigration powers for two years or longer.

It is impossible to imagine what it must be like stuck to be in a detention centre with no idea of when, if ever, you will be allowed out. Self harm and mental illness are rife, unsurprisingly.

Immigration law is something of a niche area. We immigration lawyers keep ourselves to ourselves and try to avoid adverse publicity for our clients. Sometimes, though, this low key approach may do the rest of the legal system a disservice. Infringements on liberty are in modern times usually tried first on foreigners, from secret evidence in secret trials to ID cards to indefinite detention. It is wise to heed Niemoller’s famous warning:

‘Then they came for me and there was no one left to speak out for me.’

None of the British legal tradition of liberty derives from the Human Rights Act, nor from the European Convention on Human Rights. This is, hopefully, a reminder that the label ‘human rights’ is really just a rebranding of the freedoms and liberties of which we are justifiably proud, but which are in constant danger of compromise and surrender.

This guest post is by Colin Yeo of Renaissance Chambers, editor of the Free Movement blog

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The UK Supreme Court began tweeting yesterday as @UKSupremeCourt to deserved international fanfare. Some even speculated that Wikileaks founder Julian Assange’s extradition fate could now be revealed on Twitter.

The court is already being followed by almost 4,000 Twitter users (for the uninitiated, that is a lot) and has already beaten its own Twitter policy’s prediction of “2-3 tweets a week” with eight on its first day. The eventful debut tweets included seven live updates on the swearing-in ceremony of the court’s newest Justice, Lord Reed, and one relenting to Twitter user @FOImanUK‘s valid point that contrary to the court’s stated policy, it should be possible to put freedom of information requests to the court via Twitter.

This is all excellent news. The UK’s newest and highest appeal court is now setting the international standard for open justice, with its splendid press summaries of judgments, live transmission of hearings online (today’s is a very interesting case about the state’s financial responsibility towards disable people), accessible court facilities and generally public-facing approach. This is also as it should be: the Court has a statutory duty to be “accessible”. But the Supreme Court, which is largely independent from the rest of the court system, is now streaking ahead of it in terms of access to justice. And this open justice gap is becoming a problem.

For the relatively few rulings emerging from and hearings held at the Supreme Court each year (just over 1 on average per week), the public now has access through a number of different media. But what about decisions of the “lower” courts? These account for the vast majority of rulings in the UK. For very important Court of Appeal and High Court rulings, the Judiciary’s website publishes judgments and, in a very few selected cases, summaries. For those few rulings, the Judiciary’s website also has a Twitter feed, @JudicaryUK.

But this is not enough. The European Court of Human Rights, which releases judgments almost every day, manages to produce press summaries for most of them, and certainly all of the important ones. Its website is not perfect but contains a wealth of statistical and judgment data, including fact sheets about key issues and up-to-date profiles of states which are subject to the courts. This is in direct contrast to the UK court system, which relies on and to an extent funds the fantastic free service BAILII to release judgments, but provides little else.

The Ministry of Justice has said that some hearings of the lower courts will soon be broadcast live. But progress has been slow, such that the BBC, ITN and Sky News wrote to the Prime Minister yesterday urging him to hurry up with the reforms, which will require legislative amendment of the longstanding law banning cameras in court.

It is time for the lower courts to catch up with the Supreme Court. Judgment summaries should be the rule, not the exception. Lord Neuberger, the head of the court of appeal, has publicly supported this idea; the Court of Appeal should lead the way. Like the Supreme Court, Court of Appeal judges have Judicial Assistants who I imagine help with researching cases. They could straightforwardly convert their work into succinct judgment summaries. This would improve public access to court judgments, which are getting longer and longer thanks to the scourge of “copy and paste”. It would also help the press to report judgments accurately when they are released.

And millions of people are now on Twitter. Why not use this medium, which provides direct access to the public without need for the often distorting lens of the media, to explain to people what their courts are doing and how the law is changing? The Supreme Court is leading the way as a modern court, and justice has benefited. Its example should not just be praised by the Ministry of Justice, it should be followed.

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On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.

Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.

The lecture started by sounding a note of caution against vesting too much trust in law and lawyers. Which seems perfectly sensible. Justice Cameron noted the long-held scepticism of rights: from Bentham’s dismissal of natural rights as “nonsense on stilts” to our most recent appointee to the Supreme Court, Lord Sumption, whose recent lecture warned against judicial overreach.

Justice Cameron broadly agreed with this proposition. He said that law was not social policy but its essential role is more limited: to resolve conflict and protect individuals against the State. In this way, he set up the thesis of his talk: that if this healthy scepticism is maintained, and the scope of the law is kept within boundaries, then a modest role for legal rights can be defended, as being a practical way of deciding what a decent society secures for its citizens. The talk covered three topics to support this view: the role of legal rights; law as a corrective of public irrationality and law as civic duty. For each area, the judge drew on the South African experience.

The role of legal rights

Justice Cameron tackled perhaps the most difficult area in defining the scope of legal rights: economic and social rights (ESR). The role of legal rights in securing freedom from torture, arbitrary taking of life or even freedom of expression is hardly controversial: law is surely an integral part of society’s protection of these fundamental rights, and perhaps the best way of deciding the content of these rights fairly (fairness itself being a legal right in countries abiding by the rule of law).

Economic and social rights are more complex. Here, both the content and application of rights are more difficult to pin down. South Africa’s constitution did not initially contain protection of such rights. However, the final version, ratified by the Constitutional Court in 1996, contained rights to housing, food, and further education. Justice Cameron noted that early decisions on these areas did not produce unending obligations on government to provide material wealth to people: the denial of dialysis to a person who had no chance of a cure, and Grootboom, a landmark ruling deciding that it was not necessary to provide the claimant with a house showed that even ESR can be limited in application.

However, Justice Cameron noted that the decisions of the Constitutional Court had a concrete effect on government policy, requiring housing and other welfare provision gradually to increase over the years. In this, though controversial and “far from perfect” according to the Justice, ESR provide a tool for material improvement in the lives of the poorest.

AIDS-denialism

Justice Cameron reserved his most stinging rhetoric for the second topic: the effect of ‘rights-talk’ on social policy, as a corrective for public irrationality. He started this section by stating that “in 1999, President Thabo Mbeki plunged South Africa into a ghastly nightmare.” The reference was to Mbeki’s stance on AIDS; lending credence to a discredited, unscrupulous, denialist tranche of businesspeople, lawyers, activists and scientists.

The effects of AIDS denialism were horrific; the tactics equally so. The rate of infection increased rapidly until it was around 25% in 2001, with mother to child transmission not being prevented effectively. The methods of denialists included a consistent campaign against NGO treatment access campaigners the Treatment Action Campaign (TAC).

Justice Cameron described how the TAC, exasperated at the denialists and their effect on government ministers, turned to the courts. In a judgment delivered in July 2002, the Constitutional Court decided that anti-retroviral drugs had to be made available to the public. In doing so, Justice Cameron suggests the judiciary stood up, unlike other political elites in the country, and struck a victory not only for treatment access but also for “rational public discourse.” This was the discursive and ideological impact of legal rights, that go beyond their material effect, and spread into HIV-related discrimination.

Justice Cameron brought this area further to life by talking about his own experience, of being HIV positive and being saved from the inevitable disease and death of AIDS by anti-retrovirals. The decision of the Court was, in his words, a “rebuke agains the absurd obfuscation” of the government. Powerful words indeed.

Moral citizenship

The final part of the talk was the most ephemeral. Justice Cameron argued that rights-talk can also be used in conferring the dignity of what he termed “moral citizenship”. Rights do not just provide freedom; concept of moral citizenship is richer, subtler and perhaps deeper. To illustrate the argument, Justice Cameron again drew on his own experience; this time as an LGBT rights campaigner and from his experience as a gay person experiencing homophobic sentiment.

Justice Cameron spoke of his difficulty living in a society that repressed homosexuality. He then explained that in October 1990, when the outgoing National Party government had  just agreed to legalise the African National Congress party, he took part in South Africa’s first LGBT rights March. He spoke of his feeling, when he saw that the police had cordoned off parts of the city for the march, that he glimpsed the moral citizenship that he had been denied at times in his life.

The point is not confined to LGBT rights. Justice Cameron explained that in outlawing the death penalty, the Court had argued that the core of constitutionalism was the protection of all humans, including the worst and weakest amongst us. In a development that would resonate with the UK’s perpetual discussion on the rights of immigrants, Justice Cameron also brought the rights that have been afforded non-citizens into this argument on moral citizenship.

The lecture was an interesting tour through the South African journey from apartheid to constitutional democracy. Justice Cameron’s experience is intimately linked with significant parts of the journey. It is easy to find flaws when a lecture takes on as ambitious a remit as this one.

Justice Cameron himself said that what he had to say was not only modest, but obvious. And this may be right. The central conclusion of the talk was that legal rights are important in securing material gains for the poorest in society, for avoiding the despotism of past eras (and many current regimes), and yet cannot achieve all valuable aims of social policy. This may be a vague answer, but the correct answers to the toughest questions may often be imprecise, and may be more credible for so being.

• Rights, responsibilities and the new Aids denialism
• Free speech in trouble in South Africa
• Proposed South African secrecy law may end up in the Constitutional Court

Gurung v Secretary of State for the Home Department [2012] EWCA Civ 62 (02 February 2012) - read judgment

In a short but fascinating judgment which lays bare the foundation stones of judicial review, the Court of Appeal has articulated the principles to be applied when considering whether automatic deportation of a foreign criminal was “proportionate” for the purposes of Article 8 of the Convention.

This was an appeal by the secretary of state against a decision of the Upper Tribunal (UT) that the deportation of the respondent (G) would interfere with his family life. The respondent had arrived in the United Kingdom in 2005 to join his father who had been granted indefinite leave to remain in the United Kingdom at the end of his service with the Gurkhas. Shortly afterwards G was involved in a group attack on a man, which led to the unconscious victim being thrown into the Thames and drowned. G was subsequently tried and convicted of manslaughter, which meant that he was subject to automatic deportation under the UK Borders Act 2007.  However, the Upper Tribunal found that automatic deportation would be a disproportionate interference with his right to family life in the UK.

In reaching this conclusion, the UT  lent considerable weight to the fact that the judge who tried the criminal case had made no recommendation for deportation. They also considered that  the nature of G’s offence was not such as to justify the interference, and that he was unlikely to reoffend. The UT concluded that

The regime of automatic deportation where it has impact upon the family or private life of those lawfully resident here and deserves respect [sic]requires a very careful consideration of the seriousness of the offence and the extent to which the deportation can be said to enhance public protection on the one had and the impact upon private and family life on the other. [43]

The Court of Appeal did not agree with this analysis. It upheld the Home Secretary’s appeal and remitted the case to the UT for fresh consideration.

Background

Since the 2007 UKBA was passed, the question of whether someone should be deported for the public good has moved from the executive to Parliament. This means that there is no longer any requirement for the Home Secretary to form her own view of where the public interest lies in a case like this; like the tribunals and the courts, she is bound by the legislative policy spelt out in Sections 32 and 33 of the Act.  The effect of these provisions is that if a person meets the conditions which bring him within the definition “foreign criminal”, then his deportation is deemed by statute to be conducive to the public good.

The Court’s reasoning: comment

The UT had “misplaced the emphasis” in applying Section 32 of the UKBA. This provision decides that the nature and seriousness of the offence, as measured by the sentence, do by themselves justify deportation unless an exception recognised by the Act itself applies. In reaching this conclusion, Sir Stephen relied on the summary of the position given by the Court of Appeal in RU (Bangladesh) v SSHD -

if the conditions laid down by the Act are fulfilled, the tribunal must uphold a deportation order against a foreign criminal, not because the Home Secretary considers that the public interest requires deportation but because Parliament does.

One might have assumed from this statement that the public interest test has already been settled by Parliament, and that it is no longer a live issue when either the Home Secretary or the Tribunal come to review the question of Convention rights. But this interpretation leaves no room for judicial intervention in such cases where Convention rights are asserted, which they almost invariably are. So a bit of judicial creativity is called for. It may be true that the judiciary cannot set out to thwart what parliament intended by plain words, but it can certainly emasculate that intention with some fancy footwork, as we see here. It sidesteps the awkward business of automatic deportation, in the public interest, for certain crimes by asserting that the reviewing tribunal is obliged take those public interest factors into account when performing the “proportionality” balancing exercise:

while the public interest in deportation has already been established by legislation, its content and extent in the particular case have to be separately evaluated, initially by the Home Secretary and thereafter if necessary by the tribunal, if the proportionality of deportation comes into question. Put another way, the strength of the public interest in deportation is a relevant factor in assessing its proportionality under Article 8(2)

What is this supposed to mean, exactly? Those of us who are even passingly familiar with the great debates over the subject of “proportionality” when it was first introduced as a test under EU law, and then under the Human Rights Act, will remember that its opponents regarded it as a pretext for a judicial power grab. In some respects their predictions have been borne out, and this case shows how it is done. By reasserting their control over the weighing-up exercise (the strength of public interest in deportation), the courts get back precisely the thing that the legislature took away from them in enacting Section 32 UKBA. This is made possible by the insistence that the weighing up of factors is an objective and value-neutral exercise. It isn’t, and the way that the UT stumbled, legally speaking, in importing its own wishes into the determination of G’s fate, demonstrates that this so-called neutral assessment is a figment of the judicial imagination. This is not an easy judgment to read, even in the hand of Sir Stephen Sedley, who is normally so limpid in his prose. That is because the content is so artificial; requirements of generality of principle and neutrality of application such as the steps he is proposing (here to counteract the effect of Section 32 UKBA) tell us nothing useful about how they should be put in to practice.

Whilst the prose is obscure, the invitation to courts and tribunals is clear. In a “foreign criminal” case involving Convention arguments, seek fundamental values in, in other words overrule political officials on the basis of, the tension between the individual’s interest and those of the general public. The values that judges tend to hold as fundamental are ones that the writers and readers of this blog would agree with – individual freedom, the inviolability of home and family life, and so on. Those values which have us edging for the door are the “red-top press” ones of security, retribution, deterrence, public safety. But make no mistake; the latter are just as much part of the legislative formula as the former. Just because our legislature is only imperfectly democratic does not of itself add up to a dispositive argument for substituting the court’s view for what Parliament intended.

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Related posts:

• More poor human rights reporting in “killer of Gurkha’s son” deportation case
• No removal without access to a solicitor
• Dr Naik, hate speech and the principle of expectation
• Suspected terrorist may not be deported to JordanNo removal of foreign criminals to failed states

Růžový Panter, OS v. Czech Republic (App No 20240/08) – read judgment (only available in French)

The European Court of Human Rights (Fifth Section) decided yesterday that there was no violation of Article 10 as a result of a defamation judgment against a Czech anti-corruption NGO, “Pink Panther”. The case arose out of a press release concerning a widely publicised case concerning tax evasion in relation to light heating oils (called “LTO”). The press release asked a number of questions in relation to the case. the

Background

The press release published by the applicant was addressed to IL, the then Vice-President of the Chamber of Deputies, (later Interior Minister) and invited him to clarify his relationship with certain persons, including TP. The relevant part read as follows [6]:

About five years ago IL took part in an expedition to Kilimanjaro where he met, according to him by coincidence, VK who sold light heating oils and who had just been sentenced for preparing a murder. 

We think that is necessary for deputy IL to declare publicly whether fact that he rented space in his building to TP is a similar coincidence … because TP was previously a member of the board of company M Limited, where the president of the supervisory board was M.Š. , who was also sentenced for murder linked to LTO fraud. It is not possible that deputy IL did not know that TP is linked to people who have sold LTO because the media have recently covered the case. … We invite IL to … say whether he considers it acceptable for the vice president of the Chamber of Deputies of the Czech Parliament and the opposition candidate for Minister of the Interior to rent offices in his building, to a person who had the time banded together [spolčila] as part of his business with people convicted of plotting a murder case related to LTO.

TP brought proceedings “for protection of personality” against the applicant, requiring the removal of the website an apology and damages. This claim was successful and damages of about €3,300 were awarded. The Court heard substantial evidence and considered the meaning of the word “spolčila” in Czech. It held that the press release had given the false impression that TP, had helped others, namely VK and M.Š., to commit fraud by selling the LTO or preparing a murder.

The judgment was upheld by the domestic courts on appeal and the applicant made an application to the Court of Human Rights.

Judgment

There was no doubt that the judgment of the domestic court was an interference with the applicant’s Article 10 rights, was prescribed by law and pursued a legitimate aim. The question was, therefore, whether it was “necessary in a democratic society” [27-28]. The Court of Human Rights had to consider whether the reasons given by the national authorities to justify the interference were “relevant and sufficient” and whether it had applied standards consistent with the principles of Article 10 and based on an acceptable assessment of the relevant facts [29].

Furthermore, the Court noted that,in cases of this kind it had to

determine whether the domestic authorities had struck a fair balance between, on one hand, the protection of freedom of expression, enshrined in Article 10, and, secondly, that the right to reputation of the persons concerned which, as an element of privacy is protected under Article 8. The latter provision may require the adoption of positive measures to ensure effective compliance of privacy even in relations between individuals (Von Hannover v.. Germany, No. 59320/00, § 57, ECHR 2004-VI, Petrina c. Romania, No. 78060/01, § 35, 14 October 2008). [30]

The applicant contended that the publication referred only to the true fact that TP was linked with VK and M.Š since he was on the board of directors of a company which also included them.

The Court noted that, in this case it was

difficult to draw a clear dividing line between facts and value judgments in this case because the judgment against the applicant was not based on the main factual claims in the press release as such, but rather how they were presented to the public and the impression they could produce in the reader [31]

The Court recognizes that

a distortion of reality, made in bad faith, may sometimes go byeond the limits of acceptable criticism: a true statement can be coupled with additional comments, value judgments, assumptions, or even innuendo that create a false image to the public (see, for example, Vides Aizsardzības Klubs v. Latvia, No. 57829/00, § 45, May 27, 2004)[32]

The use of the term “banded together” [spolčila] was crucial. Although it could be considered a value judgment, it has to have a sufficient factual basis (see Lindon, Otchakovsky-Laurens and July, §55). In this case, the domestic court clearly explained why they believed that the term carried a criminal connotation. It also noted that text mentioned a link between TP and people “sentenced” though at the time VK and M.Š. had not yet been tried. There was no reason to think that the domestic courts had not properly balanced the interests in question [32].

The Court noted that, as the domestic courts had pointed out, the right to freedom of expression under Article 10 carried with it “duties and responsibilities” so that “the protection provided by Article 10 is subject to the condition that they are acting in good faith and based on accurate facts”. The fact that the press release was on the website of the applicant NGO meant that the public was likely to consider it credible and serious [33].

Although the applicant was seeking, on behalf of the public, to expose the questionable connections of deputy IL, it had ample opportunity to use appropriate means to achieve this end – it was not necessary to include the full name of TP, who was a private individual [34].

The damages represented at the relevant time about five and a half times the average monthly salary and the measures taken were not disproportionate to the legitimate aim pursued [36].

The Court concluded that

the domestic court could reasonably find that the interference with the applicant’s exercise of its right to freedom of expression was necessary in a democratic society within the meaning of Article 10 of the Convention, to protect the reputation and rights of TP.[37]

Comment

This case is an interesting example of the approach of the Court of Human Rights to defamation cases. It is now recognised that a balance has to be struck between Article 10 expression rights and Article 8 privacy rights. The publication complained of was by a serious campaigning NGO on a matter of public interest and the basic factual allegations against TP were correct. Nevertheless, the “impression” (or as English lawyers would say the “natural and ordinary meaning”) conveyed was that TP was part of a criminal association. This was false. The press release went beyond “value judgments” (what English lawyers would call comment) and made false factual allegations.

As in any defamation case the precise words used were crucial – the use of the word “spolčila” – “banded together” or perhaps “conspired” – was crucial. The Court also took into account the fact that the applicant NGO was a credible and serious body which the public would be likely to trust.

This case illustrates the careful balance which the Court of Human Rights seeks to strike in freedom of expression cases. Even where the publication in question deals with serious issues of public importance – such as the connections of a senior politician – the publishers must act with care and responsibility and must ensure that the “reputation rights” of third parties are appropriately protected.

This post first appeared on Inforrm’s blog and is reproduced here with permission and thanks.

In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims,

In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.

He agrees with MoJ - sort of. The difference is that he would simply fix costs, rather than do it via a system of Protective Cost Orders. He would also allow defendants to apply to set aside a fixed costs order where the claimant is sufficiently well off to meet the full costs of the action (the MoJ also recommends this). But he also suggests that defendants should be restrained from such applications by bearing the costs in all cases, and, in the event that they lose, being liable to pay the claimant’s costs of opposing the application. This would cover, for instance, a multi-national challenging the grant of planning permission to a rival company.  More difficult is the case of a challenger who is reasonably comfortably off, with a nice enough house, but who does not have the capital to dedicate to paying the costs of a full-blown judicial review were he to lose – and remember, many environmental challenges are pursued for altruistic reasons. Jackson LJ thinks that this will be copper-bottomed compliance with Aarhus. I am not so sure.  The EU Court considers that the test of prohibitive expense in the Aarhus Convention (as incorporated into EU law) is objective and not tailored to the specific means of the claimant, and this was the provisional view of the Supreme Court in Edwards. Jackson LJ readily acknowledges that such an exception to the fixed cost regime will have to be carefully drafted – indeed so, otherwise it will trigger a form of satellite litigation which he understandably deprecates when it takes the form of deciding whether a PCO should be granted.

The other exception is at the choice of claimants. They can opt out of this regime. So if a claimant is prepared to forego limiting his own costs liability to £5,000, then his entitlement to recover costs if successful should also be at large – he can claim more than £30,000. Jackson LJ points out that such a provision has analogies in the tax field. In tax appeals to the First-Tier Tribunal the taxpayer has a right to opt in or out. Interesting this, but also ripe for painful conflicts of interest between solicitor and client. Client very happy to cap his costs liability at £5,000, if he loses. Solicitor thinks that, if the client opts out, he, the solicitor, is far more likely to recover, say, £100,000 if he wins on a fully contested and difficult case. (Recovering £100,000 from your successful client where your client’s recoverable costs are capped at £30,000 is unlikely to be a happy pastime for any lawyer). You might say to yourself – well, the solicitor is being greedy – but if they both face, say, a public body supported by an interested party who has £250,ooo to spend warding off a challenge, you will see the point. Because none of these caps stops a party spending what he likes on a case, even if he cannot recover it from the other side. Hence, the problem of equality of arms which (to a modest extent) is recognised by the disparity between the £5,000 and the £30,000.

This fixed costs regime is the suggested way ahead for environmental judicial reviews (counting under that head all claims under the EU Public Participation Direction). But what about the non-environmental judicial review, where at the moment the claimant has a PCO regime available only in limited circumstances – including a criterion that the claimant could not pursue the claim but for a PCO?  Jackson LJ has in mind the development of his fixed costs world into this area. The courts would certainly like this, rather than having an odd little palisade behind which Aarhus cases sit, though whether the wider range of interests seen over the whole field of public law challenges would agree is another matter.

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• Environmental compliance body urges major changes to the law
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Coogan and Philips v News Group Newspapers [2012] EWCA Civ 48 -

The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation. The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).

Background

Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”. Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters. He refused, invoking PSI.

Ms Phillips, in turn, relied on the “exception” to the privilege in section 72 which provides that

‘(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person … to proceedings for a related offence … :

(a) from answering any question put to that person in the first-mentioned proceedings; or

(b) from complying with any order made in those proceedings.

(2) Subsection (1) applies to the following civil proceedings in the High Court, namely:

(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;

(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off;

(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.

(3) …. [N]o statement or admission made by a person:

(a) in answering a question put to him in any proceedings to which subsection (1) applies; or

(b) in complying with any order made in any such proceedings, shall, in proceedings for any related offence … , be admissible in evidence against that person …

(5) In this section:

“intellectual property” means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property;

“related offence”, in relation to any proceedings to which subsection (1) applies, means:

(a) in the case of proceedings within subsection (2)(a) or (b):

(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or

(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;

(b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings; ….’.

On 17 November 2010, Mann J held that Mr Mulcaire was not entitled to rely on the PSI ([2010] EWHC 2952 (Ch)).

A similar application was made subsequently by Mr Coogan in another action. The PSI point was dealt with by Vos J who, after fuller citation of authority, reached the same conclusion as Mann J ([2011] EWHC 349 (Ch)).

Mr Mulcaire appealed against both orders and the appeals were heard together. Mr Mulcaire argued that:

(i) Information obtained by Mr Mulcaire from intercepting the voice messages of Ms Phillips and/or Mr Coogan was not ‘intellectual property’ and therefore section 72 cannot apply;

(ii) If the information in question was ‘intellectual property’:

(a) Mr Mulcaire would, if he were required to provide all the information ordered by Mann J, and some of the information ordered by Vos J, be at risk of being prosecuted for an offence which is not a ‘related offence’, so section 72 does not apply;

(b) Section 72 is inconsistent with Article 6 of the European Convention on Human Rights (‘the Convention’), and the court should accordingly make a declaration of incompatibility.

Judgment

Lord Neuberger MR delivered the sole judgment. He began his analysis with some general observations about PSI, concluding

“I would take this opportunity to express my support for the view that PSI has had its day, provided that its removal is made subject to a provision along the lines of section 72(3). Whether or not one has that opinion, however, it is undoubtedly the case that, save to the extent that it has been cut down by statute, PSI remains part of the common law, and that it is for the legislature, not the judiciary, to remove it, or to cut it down” [18].

In relation to the first issue, he began by noting that the only basis upon which it could be said that the information intercepted from the claimants’ phones constituted ‘intellectual property’ as defined in section 72(5) was if it was ‘technical or commercial information or other intellectual property’. [22]

Lord Neuberger rejected the argument put forward by the Secretary of State (as an interested party) that “commercial information” should be broadly interpreted because section 72, together with the PSI restrictions contained in the Theft Act 1981 and the Fraud Act 2006 represent a “coherent code” to limit PSI. Conversely, he found that the provisions in question were “piecemeal” and “arbitrary” and operate in wholly different contexts. [28]

He expressed the provisional view that this expression meant confidential information which is technical or commercial in character. After considering a number of authorities and textbooks he said

“while the prevailing current view is that confidential information is not strictly property, it is not inappropriate to include it as an aspect of intellectual property. Accordingly, unless there is binding authority to the contrary, I am of the view that, given the normal meaning of ‘commercial information’, the draftsman of section 72 intended confidential information of a commercial nature to be included in the definition of ‘intellectual property’” [39].

Lord Neuberger then went on to consider whether “non-commercial confidential information” fell within the ambit of the definition of intellectual property in section 72. Although, at first sight it might appear that the answer was “no”, he concluded that such information did, in fact, constitute “other intellectual property”, essentially for four reasons.

First, if confidential commercial information was intellectual property then non-commercial confidential information would be “other intellectual property” [46]. He suggested that the reason why the draftsman did not simply use the words “confidential information” was that, in 1981, the law of confidential information was only rarely applied to personal confidences [47].

Second, there were practical reasons for including personal confidential information because

“It would be surprising if PSI could be invoked by a defendant in relation to a breach of confidence claim which related to personal information, but not where the nature and circumstances of the claim were identical, save that it related to commercial information” [51]

Third, if personal confidential information is not intellectual property, the same information could be commercial in one person’s hands and personal in the hands of another. “If commercial information, but not personal, information is within section 72, then the applicability of the section could, in some cases, turn on how the claim is pleaded – a most unattractive result“. [52]

In relation to the problem of “mixed messages” – ones which contain some confidential information and some non-confidential information – Lord Neuberger was of the view that there was a “strong presumption that at least some of the information contained in the messages is confidential” [55]. As a result, “if a defendant has intercepted a claimant’s voice messages … even where there is a significant preponderance of plainly non-confidential messages, he should nonetheless disclose them as part of the overall disclosure exercise” [56]

Lord Neuberger therefore concluded that the disclosure orders of Mann and Vos JJ should be upheld.

The second argument advanced by Mr Mulcaire was that information concerning the identity of those who had given instructions or to whom information had been passed, was information which would expose him to proceedings for a “related offence”. This was rejected on the basis that “where a person intercepts a voice message on the instructions of a third party, the giving of those instructions can fairly be said to be part and parcel of the interception”. [66]

Finally, Mr Mulcaire contended that section 72 was incompatible with Article 6 of the European Convention on Human Rights. This argument was given short shrift by Lord Neuberger who said that, in his opinion, it was wrong [73] and was not supported by the Strasbourg jurisprudence [74]

Lord Neuberger’s conclusions were as follows:

i) Much of the information on the voicemail messages of the claimants which have been intercepted by Mr Mulcaire is likely to have been ‘commercial information or other intellectual property’ within section 72(5);

ii) Although some of the information was not ‘commercial information or other intellectual property’, and, in Ms Phillips’s case, the confidence may have been that of her clients, section 72 can be relied on against Mr Mulcaire in both cases;

iii) Para (a)(i) of the definition of ‘related offence’ in section 72(5) applies, and, while paras (a)(ii) and (b) do not, that does not assist Mr Mulcaire in resisting any aspect of the orders he is appealing;

iv) Section 72, as so interpreted, is not incompatible with the Convention, and in particular Article 6; so the orders requiring Mr Mulcaire to give the information ordered by Mann and Vos JJ were correct;

v) It would be inappropriate to impose any safeguards in favour of Mr Mulcaire over and above those contained in section 72(3);

vi) Vos J’s order striking out references to PSI in Mr Mulcaire’s Defence in the proceedings brought by Mr Coogan was correct. [83]

Comment

This is an important judgment on PSI and section 72 in general and for the phone hacking litigation in particular. The Court of Appeal was prepared to extend the removal of PSI by section 72 to all cases involving the obtaining of confidential information. Although it is not said so in terms, this plainly extends to “private information” as well. It is clear that any information obtained from voicemails (and, by extension) emails constitutes intellectual property for the purposes of section 72 and that, as a result, PSI cannot be relied on by the alleged wrongdoer. It is consequently hard to imagine any circumstances where confidential information has been illegally obtained which would now permit reliance on PSI in civil proceedings.

It seems likely that, as a result of this decision, the claimants in the voicemail interception litigation will now seek to require Mr Mulcaire to provide detailed information as to when, where, by whom and for what purposes he was instructed to carry out phone hacking by NGN employees. The potential of this to expose just how deep knowledge of phone hacking went is obvious and significant.

Doubtless in anticipation of applications for such orders, Mr Mulcaire sought permission to appeal to the Supreme Court and a stay of the effect of the ruling. The Court refused permission to appeal but granted a stay until 5pm on Monday 6 February 2012 pending an application to the Supreme Court for permission to appeal. The Master of the Rolls suggested that the appeal should be expedited because of the pending trial.

An optimistic Mr Mulcaire said in a statement issued through his solicitor, Sarah Webb, that there was no dispute that he was entitled to invoke the long-standing common law PSI, subject to Section 72 of the Senior Courts Act 1981, on which the appeal hinged.

“I am pleased that the Court of Appeal has recognised that this privilege remains a part of our common law. It has also emphasised that it cannot be removed in civil proceedings without safeguards for the person at risk of prosecution. Though it considered that the Act removed my privilege in these two cases, the Court of Appeal considered the arguments put forward on my behalf in great detail in its judgment. It acknowledged that those arguments ‘appear to be of some general significance’. I intend to appeal this ruling to the Supreme Court, because this may affect my right to claim the privilege in other civil cases still being brought against me.”

This is right – the Court of Appeal was clear that any limitations on the common law right of PSI were to be made by Parliament and not the judiciary. However, the Court of Appeal’s interpretation of those parliamentary limitations leaves Mr Mulcaire in a decidedly unprivileged position.

Central Issue

The central issue for the Court concerned the extent and effect of section 72 of the Senior Courts Act 1981 (‘section 72’), which cuts down the common law privilege against self-incrimination in relation to certain types of claim. (para 1)

Grounds of appeal

Mr Mulcaire had three grounds of appeal:

i) Information obtained by Mr Mulcaire from intercepting the voice messages of Ms Phillips and/or Mr Coogan was not ‘intellectual property’ and therefore section 72 cannot apply;

ii) If the information in question was ‘intellectual property’:

(a) Mr Mulcaire would, if he were required to provide all the information ordered by Mann J, and some of the information ordered by Vos J, be at risk of being prosecuted for an offence which is not a ‘related offence’, so section 72 does not apply;

(b) Section 72 is inconsistent with Article 6 of the European Convention on Human Rights (‘the Convention’), and the court should accordingly make a declaration of incompatibility. (para 11)

Consideration of Ground 1:

The Court considered this at paragraphs 14 – 61.

The Court dismissed this ground of appeal with the Master of the Rolls, Lord Neuberger, saying:

“Having reached this conclusion as to the meaning of section 72(2) so far as it relates to ‘commercial information and other intellectual property’ in cases such as the present, it seems to me that, on the facts as described in paras 20 and 21 above, it is clear that Mann J (subject to one point) and Vos J reached the right conclusions. Unsurprisingly, bearing in mind the somewhat unsatisfactory drafting of section 72, my reasoning may not be identical to theirs in all respects, but it is pretty similar.” (para 57)

Consideration of Ground 2:

The ‘related offence’ ground of appeal is considered in paragraphs 62 – 71.

In dismissing this ground Lord Neuberger said:

” Accordingly, in my judgment, requiring Mr Mulcaire to identify the individuals who instructed or asked him to intercept the voice messages of the claimants did not involve the court trespassing outside the limits of section 72, even bearing in mind that the claimants rely on para (a)(i) of the definition of ‘related offence’ in subsection (5). I do not consider that this conclusion cuts across paras (a)(ii) or (b), which, as Mr de la Mare contended, are quite capable of having a wider reach.” (para 67)

Consideration of Ground 3:

The compatibility of section 72 with Article 6 is discussed in paragraphs 72 – 77.

In rejecting this ground, Lord Neuberger said:

” … If there is any unfairness such that Article 6 would be infringed, it would be in relation to any criminal proceedings which may or may not be brought against Mr Mulcaire in the future. It is only if such proceedings were brought, and if the information which he provided was used in the criminal trial against him (or, possibly, if the information had been used to assist the prosecuting authorities in formulating or pursuing criminal charges against him) that his Article 6 argument could come into play.” (para 73)

Conclusion:

Lord Neuberger, concluded:

“Accordingly, I would dismiss these appeals, as:

i) Much of the information on the voicemail messages of the claimants which have been intercepted by Mr Mulcaire is likely to have been ‘commercial information or other intellectual property’ within section 72(5);

ii) Although some of the information was not ‘commercial information or other intellectual property’, and, in Ms Phillips’s case, the confidence may have been that of her clients, section 72 can be relied on against Mr Mulcaire in both cases;

iii) Para (a)(i) of the definition of ‘related offence’ in section 72(5) applies, and, while paras (a)(ii) and (b) do not, that does not assist Mr Mulcaire in resisting any aspect of the orders he is appealing;

iv) Section 72, as so interpreted, is not incompatible with the Convention, and in particular Article 6; so the orders requiring Mr Mulcaire to give the information ordered by Mann and Vos JJ were correct;

v) It would be inappropriate to impose any safeguards in favour of Mr Mulcaire over and above those contained in section 72(3);

vi) Vos J’s order striking out references to PSI in Mr Mulcaire’s Defence in the proceedings brought by Mr Coogan was correct.” (para 83)

The Lord Chief Justice and Lord Justice Maurice Kay agreed with the judgment of the Master of the Rolls. (para 84 – 85)

This post first appeared on Inforrm’s blog and is reproduced here with permission and thanks.

The Wikileaks founder was granted permission in November 2011 to appeal to the Supreme Court under Section 32 of the Extradition Act 2003. If he loses, unless he brings a claim at the European Court of Human Rights, he will have to face charges of sexual assault and rape in Sweden.

In other news, Assange will almost certainly be the first Supreme Court appellant to appear on The Simpsons less than three weeks after his hearing (well, perhaps apart from this appeal). He is featuring in an episode on February 19th.

Information for anyone hoping to attend the hearing is here and my summary post of November’s High Court ruling is here. See also the UK Supreme Court Blog’s excellent post previewing the hearing.

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Read more

• Julian Assange loses High Court appeal against extradition
• Julian Assange must face rape charges in Sweden, rules court
• Extradition review could improve European Arrest Warrants – Rebecca Shaeffer
• Wikileaks and the arrest of Julian Assange

The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012.  The cases were both heard more than 15 months ago, on 13 October 2010.

We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private.  The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos.  The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.

The German courts held that the right to protection of X.’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed.  The applicant complained that the injunction preventing it from publishing the articles was a breach of its Article 10 rigths.

In Von Hannover (No. 2) the applicants, Princess Caroline of Monaco and her husband, had sought injunctions against the publication of further photos, showing them during a holiday and taken without their consent, which had appeared in the German magazines Frau im Spiegel and Frau Aktuell between 2002 and 2004.

While the Federal Court of Justice granted Princess Caroline’s claim as regards the publication of two of the photos in dispute, it dismissed her claim as regards another photo which had appeared in February 2002 in Frau im Spiegel. It showed the couple taking a walk during their skiing holiday in St. Moritz and was accompanied by an article reporting, among other issues, on the poor health of Prince Rainier of Monaco.

The courts found that the reigning prince’s poor health was a subject of general interest and that the press had been entitled to report on the manner in which his children reconciled their obligations of family solidarity with the legitimate needs of their private life.  The applicants complained, under Article 8, of the German courts’ refusal to prohibit any further publication of the photos in dispute.

The applications raise serious and difficult issues about the ambit of the right to respect for private life under Article 8 of the Convention. The protection accorded to the actor in the Axel Springer case and that sought by the applicants in von Hannover (No.2) go considerably further than that which presently afforded by English law.  Decisions in favour of German government in the first case and the applicants in the second would, therefore, have a very substantial impact on domestic privacy law and would extend the scope of privacy protection.  On the other hand, if the Article 10 arguments were to succeed in each case then this may lead to some modification of privacy law in the direction sought by the media.

We will have a report on the judgment when it is handed down.

This post first appeared on Inforrm’s blog and is reproduced here with permission and thanks.