Hacking, secret justice and access to it – the Human Rights Roundup
21 November 2011
by Melinda Padron
In the news
The Leveson Inquiry begins
Last week saw the start of the Inquiry into the culture, practices and ethics of the press, headed by Lord Justice Leveson. Proceedings can be followed via the Inquiry’s website, where you can either watch live hearings or videos of past hearings, a move welcomed by Adam Wagner as a “minor landmark for open justice.” Hugh Grant (pictured) as well as other celebrities and victims will be appearing this week to give evidence.
Blogger Obiter J reported that Lord Justice Leveson gave an interesting warning to journalists against unjustified coverage of the Inquiry proceedings. Such unjustified and hostile coverage, said Lord Justice Leveson, might lead to the “conclusion that these vital rights are being abused which would itself give evidence of culture, practice and ethics which could be relevant to my ultimate recommendations.” The warning, remarks Obiter J, may be perceived as the imposition of restriction on the media. The Inquiry’s opening day has been described as “dramatic”, particularly due to the powerful submissions made by Robert Jay QC, counsel for the Inquiry. Mr Jay QC, in a long speech, set out the purposes and concerns of the Inquiry and referred to evidence which may indicate that the practice of phone hacking at News International was a systematic one.
The Leveson Inquiry should be watched with interest because of the potential impact it may have on freedom of speech. If you are interested in catching up with last week’s events before following next week’s proceedings, check out the excellent coverage of the Inquiry by the Inforrm’s Blog (which also provides us with a comprehensive Law and Media news roundup).
Not wholly unrelated is the matter of the right to privacy. Whilst giving evidence before the parliamentary committee on privacy and injunctions, blogger and solicitor David Allen Green reflected on, amongst other things, what he believes is the fundamental question before the committee: what intervention, if any, can legislation make to deal with the illiberal use of privacy and other injunctions?
Stepping outside the system
Adam Wagner wrote a post last week about two articles published in the Guardian’s “Comment is Free” section by members of the Occupy Movement which he found to be particularly worrying – see Legal Bizzle’s excellent roundup of the coverage here.
Last week it was announced that legal action against the Occupy Movement protest camp at St Paul’s cathedral will be relaunched. Giles Peaker, writing for the Guardian, believes that the action against protesters obstructing the highway at St Paul’s is open to many interpretations.
Secret evidence v open justice: the Justice and Security Green Paper
In response to the Supreme Court judgement in the case of Al Rawi and others (see also commentary), which found that the government could not withhold evidence in a civil case without clear statutory authority, the government has published a Green Paper which proposes the extension of “closed material procedures”. As Joshua Rozenberg explains,
Under these arrangements, the government does not disclose sensitive evidence to the other party or its legal team. Instead, the evidence is shown to the court and to a special advocate, an independent lawyer who has the challenge of representing the other side’s interests without telling that side what the evidence says.
The move, which has been backed by Foreign Secretary William Hague, seeks to extend the availability of such arrangements from not only national security proceedings, but also civil proceedings. As pointed out by Adam Wagner, the Green Paper also involves a consultation on the proposals, and responses can be sent via email by Friday 6 January 2012. Rozenberg believes the plans undermined the fundamental constitutional right to open justice, a reflection which is based on a lecture given by leading human rights and judicial review advocate Dinah Rose QC, snippets of which are quoted in the article.
The use of secret evidence involves a balancing exercise of the often conflicting interests of national security and open justice. For an interesting recap of where our law stands in this balancing exercise, read Rosalind English’s article, which was written in the aftermath of Al Rawi.
Deprivation of liberty in care standards cases: Cheshire West and Chester Council v P
The long awaited Court of Appeal judgement in Cheshire West and Chester Council v P has finally come out. The Court of Appeal has taken a different view to that of Mr Justice Baker in the Court of Protection, and decided that Article 5 of the ECHR was not engaged in P’s case.
Lucy Series, writer of The Small Places blog, has posted both a summary of, and a commentary to, the judgement. In the summary, Series gives a background to the case and discusses the two main features of the judgement: (1) the relevance of the purpose behind restrictions imposed on an individual in the assessment of whether care measures amount to deprivation of liberty; (2) the introduction of a “comparator” (to be a person of similar disabilities to those of the individual in the relevant case) when considering the normality of the individual’s care restrictions, and accordingly, whether or the restrictions amount to a deprivation of liberty.
In her commentary, Series reflects on the interplay between the Deprivation of Liberty Safegards framework and scrutiny (be that judicial or other kind) in attempting to safeguard the human rights and bests interests of highly vulnerable individuals in care.
Our commentary is here.
Report on Access to Justice for Litigants in Person – making the best of a bad job?
The Civil Justice Council has published a report on Access to Justice for Litigants in Person. As reported by Jon Robins, for the Guardian, the report forecasts an increase in the number of LiPs of considerable scale, and highlights that its recommendations will “not prevent the reality that in many situations … there will be a denial of justice.” The article summarises some of the report’s recommendations, and suggests that the coalition government is moving in the opposite direction from some of them, particularly the bolstering of advice agencies and the promotion of mediation. The article also calls for lawyers and those engaged in pro bono work to rise to the challenge posed by the increasing number of LiPs.
In the courts:
…and don’t forget our recent posts:
- Freedom of information – no longer the Cinderella of rightsNovember 17, 2011 Rosalind English
- Severely disabled man’s care plan not a deprivation of liberty – Court of Appeal November 17, 2011 Thomas Henderson
- Climate change: No right to know effect of new EU rules November 16, 2011 Karwan Eskerie
- Freemen of the dangerous nonsense November 15, 2011 Adam Wagner
- One of the “great unspoken problems” about human rights law November 15, 2011 Rosalind English
- Leveson goes live November 14, 2011 Adam Wagner
- Naïve intentions, inferred imputations – The Human Rights Roundup November 13, 2011 Graeme Hall
- A blueprint for a simpler, fairer justice system November 11, 2011 Adam Wagner