BSkyB and another, R(on the application of) v Chelmsford Crown Court  EWHC 1295 (Admin) – read judgment
The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.
Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.
After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction. They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action. Continue reading
South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment
South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.
South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law (the ICC Act) the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.
Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and Slobodan Milošević.
As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe –
One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.
Now the tables are turning, and this universal jurisdiction is not being universally welcomed.
1 Crown Office Row’s Philippa Whipple QC was leading counsel to the Gibson Inquiry. She is not the writer of this post
The Justice Secretary has told Parliament that the Gibson Inquiry tasked with considering whether Britain was “implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” has been scrapped.
Ken Clarke announced that the police investigations into rendition, which were always to come before the formal start of the inquiry’s hearings, would take so long that the current inquiry could not continue. He said the Government remained committed to a judge-led inquiry, but presumably the current inquiry team could not be kept twiddling their collective thumbs for years longer.
The Crown Prosecution Service announced last week that it would not be bringing charges in relation to some of the historic allegations – particularly in relation to Binyam Mohammed and a 2002 incident at Bagram Air Base in Afghanistan. It would, however, begin to investigate more recent allegations in relation to Libya and “a number of further specific allegations of ill-treatment“. Continue reading