Privacy: the way ahead? Part 1 – Hugh Tomlinson QC

The Prime Minister has said that he is “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament.  In our contribution to the continuing debate on this issue we are re-posting this [update – three part!] discussion on the history and future of privacy law from Inforrm’s Blog.


The “law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century. But the pace of development has accelerated over recent years. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties. The action for breach of confidence has been transformed – almost beyond recognition.

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Silence please: A Facebook contempt of court – allegedly

A juror has found herself facing contempt of court charges, it being alleged that she communicated on Facebook with a defendant who had already been acquitted.

These types of proceedings can have human rights implications in two ways: Article 6, providing the right to a fair trial can be infringed upon by improper communicaton by jurors, and to a lesser extent, Article 10, which provides the right to freedom of expression may be engaged. As Article 10 includes a large number of circumstances where freedom of expression may be lawfully restricted, raising freedom of expression arguments to challenge the bringing of contempt proceedings would be very unlikely to succeed in these circumstances.

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Wrongs and rights, more wrangles

[Updated] When blogging about the Great Strasbourg Debate, Adam Wagner recently reflected that he and I are”good cop, bad cop”. No prizes for guessing who plays which role.

Anyway, for what it’s worth, here are a few pensées on the recent news that the Daily Telegraph is backing a reform campaign (see Adam’s post on this). Or rather, let’s start with Charles Darwin, who observed that the human animal is capable of continual extension in the objects of his “social instincts and sympathies” from the time when he had regard only for himself and his kin:

… later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellowmen’, [then] ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals.

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Luck, human rights and the lottery winning rapist

Iorworth HOARE v the United Kingdom – 16261/08 [2011] ECHR 722 (12 April 2011) – Read decision

Potential future US president Donald Trump once said that “Everything in life is luck“. Sometimes a case arises from such an unlikely factual scenario that it raises questions about the relationship between justice, fairness and luck. This is such a case.

Iorworth Hoare was convicted 1989 for attempted rape. He was a serial sex offender, so was sentenced to life imprisonment. As life in prison does not usually mean actual life in prison, he was released on 31 March 2005. In what could be considered a not quite minor reversal of Hoare’s deservedly poor fortune up to that point, in 2004, while on day release, he bought a National Lottery ticket, and won £7m. Home Office rules allowed prisoners in open conditions to play the lottery.

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Albie Sachs – start with the issues, forget the parties

Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 – read judgment

Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.

I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.

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Ban on religious couple adopting?.. On the naughty step

Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.

In yesterday’s Telegraph online, Cristina Odone blogged on a recent “scandal” relating to Mr Justice Mostyn’s request to carry out his responsibilities as a duty judge in Tenerife. I will leave comment on the main story to Charon QC, save to say that Odone uses the story as a means of judge-bashing, a sport which is currently popular in the press and even with politicians. “Who”, asks Odone channeling public anger, “do these judges think they are?” Moreover,

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Doctors not entitled to be judged by independent panel

R (on the application of Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin) Judgment of Mr Justice Blair given on 15 April 2011 – Read judgment

This claim for judicial review is the latest skirmish in The Wars of the HC [90] 9 Succession between doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of Maintaining High Professional Standards in the Modern NHS (MPHS) in 2005.

It is also a blow for those who believe that professionals facing serious allegations that may have adverse consequences for their ability to practise in their chosen field should be entitled to be judged by a panel independent of their employer.

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