Anonymity order compatible with Convention and common law – Supreme Court

anonymity21A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)  [2014] UKSC 25 – read judgment

This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case.  The Supreme Court unanimously dismissed the appeal by the BBC.

The following report is based on the Supreme Court’s Press Summary.   References in square brackets are to paragraphs in the judgment.

Background 

A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights  should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9]. Continue reading

The difference between public and private law – on a beach near me

article-2228546-001DDD4300000258-451_634x411More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.

For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.

How so?

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Freedom of expression – nakedness in a public place

Stephen_Gough_at_lands_endGough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment

Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012,  wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. “He was otherwise naked and his genitalia were on plain view.” He then walked through Halifax town centre for about 15 minutes.

In the words of the judgment, he received a “mixed reaction” from its inhabitants.  At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were “alarmed and distressed” and “disgusted” at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as “shocked and disgusted”. The district judge found that it caused one of the women to feel at risk, and, further, based on the evidence, that it caused alarm or distress.

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Court of Appeal refuses anonymity for offender

anonymity21Fagan, R (on the application of) v Times Newspapers Ltd and others [2013] EWCA Civ 1275 – read judgment

Only “clear and cogent evidence” that it was strictly necessary to keep an offender’s identity confidential would lead a court to derogate from the principle of open justice. The possibility of a media campaign that might affect the offender’s resettlement could not work as a justification for banning reporting about that offender, even though a prominent and inaccurate report about him had already led to harassment of his family.

This was an appeal by a serving prisoner, SF, against the dismissal of his application for anonymity and reporting restrictions in judicial review proceedings. Continue reading

Strasbourg ties itself in knots over advertising ban

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

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

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

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

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

Turkish block on Google site breached Article 10 rights, rules Strasbourg

google-sign-9YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment

In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10.  The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law.  The judgment is available only in French.

He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters.  On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.

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The only people really not allowed to mention the Holocaust

Peta Deutschland v Germany  (No. 43481/09) – read judgment

Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.

In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.

Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity. Continue reading