Passive smoking in prison not a breach of human rights – Court of Appeal

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Prisoners’ Legal Aid, Malayan Killings and the Role of the Judiciary – the Human Rights Roundup

prisoner HRRWelcome back to the UK Human Rights Roundup, your regular springtime blossom of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Celia Rooney. 

This week, a challenge to the legal aid reforms by the Howard League for Penal Reform is rejected, while campaigners seeking an inquiry into the action of British soldiers in Malaya in 1948 face similar disappointment.  Meanwhile, some of the most senior judges in the UK give their views on the role of the judiciary today.

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Mormon Tax, Posthumous Procreation and Stephen Lawrence Spying – the Human Rights Roundup

stephen-lawrence-new-murd-007Welcome back to the UK Human Rights Roundup, your regular spring harvest of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Celia Rooney.

In the human rights news this week, Theresa May answered calls for a public inquiry into undercover police officers after the publication of the independent review into spying on the family of Stephen Lawrence.  Elsewhere, Mormons take on the taxman,  the High Court considers how to interpret the law on storing embryos and gametes after death and a House of Lords Committee publishes a major report into the operation of the Mental Capacity Act.

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David Miranda challenge dismissed in High Court

David Miranda

David Miranda v Secretary of State for the Home Department, the Commissioner of Police for the Metropolis and three interveners [2014] EWHC 255 (Admin) – read judgment

The High Court has rejected all the arguments supporting David Miranda’s application for judicial review of his detention at Heathrow Airport in August last year. In a highly readable and pungent judgment, Laws LJ has some robust things to say about the vaunting of journalistic interests over public security in the guise of Article 10, and the ‘mission creep’ of requirements demanded by the courts for state action to be considered “proportionate”.

This is the long-awaited conclusion to the substantive hearing since judicial review proceedings were initiated seven months ago; see our posts on previous stages of this saga here, here and here.  It will be remembered that Mr Miranda was detained and questioned by police officers under the Terrorism Act 2000,  and various items in his possession, notably encrypted storage devices, were taken from him. Miranda claims that all this was done without any legal authority.

The claim, which was supported by numerous civil liberties interveners, raised three questions:

  1. Did paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 empower the police to stop and question  the claimant for the purpose of determining whether he appeared to be “concerned in the commission, preparation or instigation of acts of terrorism”?
  2. Even if it did, was the use of the power proportionate to the legitimate aim?
  3. Is the paragraph 2(1) power repugnant to the right of freedom of expression guaranteed by Article 10 of the ECHR?

Laws LJ, giving judgment for the three judge panel, answered the first two in the affirmative, and said a firm “no” to last.

Factual background

The claimant is a Brazilian citizen and the spouse of Glenn Greenwald, a journalist who at the material time was working for the Guardian newspaper. Some months after an initial contact made in late 2012 Mr Greenwald met Edward Snowden, who provided him with encrypted data which had been stolen from the National Security Agency  of the United States. The data included UK intelligence material. Some of it formed the basis of articles in the Guardian on 6 and 7 June 2013 and on later dates. On 12 August 2013 the claimant travelled from Rio de Janeiro to Berlin in order to meet the other journalist involved, Laura Poitras. He was carrying encrypted material derived from the data obtained by Mr Snowden and he was travelling to collect computer drives containing further such material to assist in the journalistic activity of Mr Greenwald. He was stopped at 0805 on Sunday 18 August 2013 at Heathrow on his way back to Rio de Janeiro.

A series of Port Circulation Sheets (PCS) were circulated to counter-terrorism police alerting them that the claimant was  “likely to be involved in espionage activity which has the potential to act against the interests of UK national security”, and requesting them to establish the nature of his activity, assess the risk that he posed to UK national security and to mitigate as appropriate.  A PCS essentially triggers the powers of the police under certain circumstances to carry out a ports stop against a named individual.

The claimant was detained for approximately 9 hours.  According to a statement from the Intelligence, Security and Resilience in the Cabinet Office, the encrypted data contained in the external hard drive taken from the claimant contained approximately 58,000 highly classified UK intelligence documents. Many were classified SECRET or TOP SECRET.

Judicial review proceedings started shortly afterwards, and in November 2013, after various interlocutory hearings, the substantive hearing came before the High Court.

The Court’s Decision: Improper purpose

The Schedule 7 purpose – determining whether [the subject] appears to be a person who “has been concerned in the commission, preparation or instigation of acts of terrorism” – must be the purpose for which the officers execute the stop if it is to be lawful. It doesn’t make the stop unlawful if there is a subsidiary purpose – “killing two birds with one stone” – but the permitted purpose must be the “true and dominant purpose behind the act” (R v Southwark Crown Court ex p. Bowles [1998] AC 641, [1998] UKHL 16].

The fact that the police officers in question had not been given sufficient information about the intelligence did not mean that they had not executed their instructions in good faith:

Given the context – the possible apprehension of terrorism – Parliament must have enacted Schedule 7 in the knowledge that there might be very good reasons why the examining officers … should not be privy to the whole story. (para 21)

The purpose of the stop thus disclosed was to “ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination”. Moreover, the proper exercise of the Schedule 7 power did not require that the examining officer have any grounds whatever for suspecting that a person was connected with terrorism within Act’s definition. The Schedule 7 purpose was not to determine whether the subject is, but only whether he “appears to be” a terrorist.  The Schedule 7 power was created by Parliament in order to provide “a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2)”.

Given the facts stated in the last PCS and the National Security Justification, Laws LJ for the Court concluded that the purpose of the stop – to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination – “fell properly within Schedule 7 of the 2000 Act on the latter’s true construction.”

Proportionality

The classic three step proportionality test – was the objective important enough to justify limiting a right, was the measure connected to that objective, and was the measure no more intrusive than other necessary – has been elaborated over the past decade, most recently by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) 3 WLR 170, [2013] UKSC 39. This adds a fourth question, which is to ask whether,  even if the measure in question is not particularly intrusive, did it nevertheless fail to strike a fair balance has been struck between the rights of the individual and the interests of the community? Laws LJ pondered on the implications of such a requirement, and found it not to his liking:

It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.

Free Speech and the Protection of Journalistic Expression

Laws LJ commenced his consideration of this element of the claim with a brisk dismissal of all the Strasbourg case law on the matter. The idea of free speech has received sufficient emphasis in the law of England -

I do not therefore think it necessary, on this part of the case, to place any reliance on the jurisprudence of the European Court of Human Rights; the common law is a sufficient arena for the debate.

In any event, much of the law on free speech in journalism was of no relevance here since it concerned protection of sources. No such issue arose here. The source was no secret: “Mr Snowden stole the material, and the claimant (however indirectly) got it from Mr Snowden.” (para 48).

Furthermore, the mistaken idea seems to have taken hold that the essential justification of free expression as a fundamental value is the promotion or betterment of democratic government. Freedom of speech may indeed be “the lifeblood of democracy”; but that is not the same thing.

The perception of free expression as a servant of democracy, however, would tend to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government … This would fuel what is anyway one of exuberant democracy’s weaknesses, namely the intolerance of minorities. Everyone, even democracy’s enemy, must surely be allowed his say provided he advocates no crime nor violates the rights of others. The reason is that free thought, which is a condition of every man’s flourishing, needs free expression; and this is every person’s birthright, in whatever polity he has to live. There are of course undemocratic societies in which free speech is an idle hope. But free speech is not a creature of democracy; if anything, the converse. The critics of democracy may keep democracy on its toes. (para 45)

Turning to the matter in hand, Laws LJ observed that this privileging of political speech over other forms of expression has a distorting effect on the proportionality debate. The claimant, in other words, was seeking a heightened protection for himself, or at least the material he was carrying) on account of his association with the journalist Mr Greenwald. There was no basis for the court to extend such protection:

the application of requirement (iv) in the toll of proportionality – “whether… a fair balance has been struck between the rights of the individual and the interests of the community” – needs at least to be modified. The contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

The sting of the claimant’s challenge was that the defendants did not believe that the claimant’s possession of the material presented any real danger to national security or risk of loss of life. Whilst acknowledging the limits of evidence not cross-examined, Laws LJ could find “no perceptible foundation” for such a suggestion. The truth of  it was that the claimant’s broader argument on proportionality – that the use of Schedule 7 was in any event unjustified – did not in fact depend on the categorisation of the GCHQ documents as journalistic material. The claimant was trying to make out a case that he had been assisting in the conduct of responsible journalism, and the law’s duty to protect that activity meant that interference with it by the summary and unsupervised process of Schedule 7 was disproportionate and unlawful whether or not any intercepted documents strictly fell within the statutory definition of “journalistic material”:

… given the substantial, often insuperable, difficulty a journalist faces in seeking to determine what classified material may be safely published and what may not (paragraph 58 above), the notion of “responsible journalism” throws little light on the proportionality issue.

The claimant’s essential argument rested on three propositions:

  1. Journalists, “like judges”, have a role in a democratic State to scrutinise action by government.
  2. The function of the free press is inhibited by an insistence that anything (in the security field) which the journalist seeks to publish must be stifled because it may be part of the “jigsaw” from which a knowing terrorist may draw harmful inferences.
  3. There is a balance to be struck, again in the security field, between the responsibility of government and the responsibility of journalists.

But nobody had satisfied the court that there was any constitutional basis for any of these propositions, which would confer on the journalists’ profession a constitutional status which it does not possess:

They suggest … that journalists share with government the responsibility of measuring what is required by way of withholding publication for the protection of national security. Journalists have no such constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government: see, amongst much other authority, Binyam Mohamed[2011] QB 218per Lord Neuberger MR at paragraph 131.

He concluded, therefore, that the Schedule 7 stop was a proportionate measure in the circumstances. Its objective was not only legitimate, but “very pressing”.

In a press freedom case, the fourth requirement in the catalogue of proportionality involves as I have said the striking of a balance between two aspects of the public interest: press freedom itself on one hand, and on the other whatever is sought to justify the interference: here national security. On the facts of this case, the balance is plainly in favour of the latter. (para 73)

For similar reasons the Court rejected the claimant’s and intervenors’ related submission, that the Schedule 7 power is over-broad or arbitrary, and for that reason not “prescribed by law” under Article 10(2).

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Strasbourg law does not prevent the imposition of whole life orders for “heinous” crimes

_53452935_005783605-1McLoughlin, R v [2014] EWCA Crim 188 (18 February 2014) – read judgment

The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.

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Judicial Review Concessions, Gay Olympic Controversy, and Defamation in Europe – the Human Rights Roundup

Anti-Putin protestWelcome back to the UK Human Rights Roundup, your regular sporting extravaganza of human rights news and views. The full list of links can be found here.  You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney. 

Last week, the Justice Secretary published the Criminal Justice and Courts Bill.  The implications of his revised proposals for judicial review reform are considered in this week’s roundup, along with controversy over gay rights at the Winter Olympics and recent trends in defamation cases before the Court of Human Rights.

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GCHQ Surveillance, Tory Bill of Rights and Anti-Semitism – the Human Rights Roundup

GCHQ at Cheltenham, GloucestershireWelcome back to the UK Human Rights Roundup, your regular all-singing, all-dancing extravaganza of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Sarina Kidd. 

This week, a group of MPs investigating drones were advised that large amounts of GCHQ surveillance is likely to be illegal, and the Conservatives continued their push for a Bill of Rights. Meanwhile, the Council of Europe Commissioner for Human Rights argued that anti-Semitism is alive and well in Europe.

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Drones, “Ex-Gay” Bus Advert and Train Track Constitutionalism – the Human Rights Roundup

HRR ex-gay advertWelcome back to the UK Human Rights Roundup, your regular bountiful burst of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Celia Rooney. 

This week, the pragmatic, political and constitutional ramifications of the Supreme Court’s decision in the HS2 case are up for debate.  Meanwhile, the European Court considers whether the Charter of Rights applies in private disputes, while the domestic courts take on the tricky issue of the justiciability of US drones strikes in Pakistan. And the Court of Appeal rules on TfL’s bus advert ban.

An unashamed plug: A few tickets still left for this Thursday’s event featuring Adam Wagner amongst others – Human Rights Behind the Headlines

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State Immunity, Atheist Asylum and Children’s Views – the Human Rights Roundup

Atheist bus campaignWelcome back to the UK Human Rights Roundup, your regular bustling bonanza of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Sarina Kidd. 

After a long wait, the European Court of Human Rights delivered its judgment on state immunity in civil proceedings in Jones and Others v UK. Meanwhile, an atheist has been granted asylum on religious grounds and the Supreme Court ruled that a child’s views are relevant to the evaluation of their habitual residence.

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State immunity upheld against human rights challenges in Strasbourg

Saudi_mapJones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement

The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention.  The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law”  and that there had been no violation of  Article 6 (right of access to court).

The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity. Continue reading

Lawyers Protest Cuts, Constitutional Nihilism and Libel Liberalisation – the Human Rights Roundup

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UK Human Rights Blog 2013 in review

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Click here to see the complete end of year report.

Times on the legal naughty step for bizarre ‘right to marry’ headline splash

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Caesareans, Transparency, Torture and Prisoner Votes – the Human Rights Roundup

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