Monthly News Archives: July 2010

Illegal video supply convictions stand despite failure to comply with European law

3 July 2010 by Rosalind English

Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166

CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment

A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.

The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.

The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.

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Human rights news and case-law roundup

2 July 2010 by Adam Wagner

Delicious!

We recently started adding links to interesting new articles and case-law the sidebar under the heading “Recent selected sources (del.icio.us)”. Below is a quick rundown of the most recent links. The full list of links can be found here.

• 2 July | Police use of protest photos will face review – The Financial Times reports that the use of police databases containing thousands of photographs of demonstrators is to be reviewed by ministers as part of a government vow to expand the right to non-violent protest (a pledge made in the Coalition Program for Government).

• 1 July | Parliamentary privilege hearings not subject to press restrictions – The Court of Appeal is currently hearing the appeal of four men accused of fiddling their parliamentary expenses. The men are claiming parliamentary privilege on the basis of the 1688 Bill of Rights (see our previous post).

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Government asking for views on civil liberties on “Your Freedom” website

1 July 2010 by Adam Wagner

The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.

The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.

In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.

Human rights on the battlefield – a postscript on ‘dicta’ (and ‘dicta’)

1 July 2010 by Angus McCullough KC

Even if technically obiter, it is suggested that the reasoned decision of the majority of the Supreme Court in Smith is likely to be regarded as binding in practice, if not in strict theory.

This is a postscript to Adam Wagner’s post this morning on the UKSC decision in R (Smith) v. MOD (see our post summarising the decision or read the judgment), commenting on the debate as to the authority of the judgment of the majority on the jurisdictional issue.

It may be worth bearing in mind the weight likely to be accorded by any lower court to the views of the majority of a 9 judge constitution of the Supreme Court.  Even if not technically binding, it is hard to imagine any judge at first instance, or even the Court of Appeal, having the courage to depart from the reasoned views of the majority on this point, unless arising in some unforeseen or unusual factual context.

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Stop and search powers under review as European Court reject UK appeal

1 July 2010 by Adam Wagner

The European Court of Human Rights has rejected the United Kingdom’s application to appeal its decision in a recent finding that stop and search powers enacted as part of anti-terrorism legislation breached human rights law.

In January 2010 the European Court held that section 44 of the Terrorism Act 2000 (the broad police power to stop and search without suspicion) violates the right to respect for private life guaranteed by Article 8 of the Convention on Human Rights (Gillan and Quinton v. UK 4158/05 [2010] ECHR 28 (12 January 2010)). The claimants received £500 each by way of compensation.

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Was human rights on battlefield decision binding?

1 July 2010 by Adam Wagner

It is possible that yesterday’s controversial Supreme Court decision on human rights on the battlefield was merely an academic exercise and therefore not binding on future courts.

There has been significant commentary and conjecture over the decision in R (Smith) v Secretary of State for Defence & Anor (see our post or read the judgment). The Supreme Court seemed to have decided by a 6-3 majority that the Human Rights Act did not apply once a soldier stepped out his or her base, therefore reversing a previous decision by the Court of Appeal that it did.

But the most interesting comments from a legal perspective have been on the question as to whether the decision was in fact binding. Adrian O’Neil QC picked up the point in an interesting commentary piece on the UK Supreme Court Blog.

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