Swearing, hacking and legal aid U-turns? – The Human Rights Roundup

28 November 2011 by Graeme Hall

Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Graeme Hall

In the news

Phone-hacking

The Leveson Inquiry has had a star-studded parade of witnesses and phone hacking has dominated the headlines. This week’s highlights have been comprehensively covered by Inforrm’s Blog here, here and here.

David Allen Green, writing in the New Statesman, remarks that this Inquiry is a boost for democracy as it gives a voice to those who have been at the sharp end of press intrusion – normally all to easily ignored and silenced by papers. Freedom of expression, at least during the Inquiry, is not just the preserve of the press.

Inforrm’s Judith Townsend also picks up on the foibles for the legal profession of live streaming and twitter in court, hoping that one lawyer’s penchant for male celebrities won’t close the court’s digital doors. Conversely, another inquiry – the on-going parliamentary select committee looking into the conduct of News International – was criticised by barrister Prof John Cooper for lacking legal expertise, including forensic cross-examination (though presumably not forensic gazing).

Legal Aid, Sentencing and Punishment of Offenders Bill (‘LAPSO’)

LASPO, which is making its way through Parliament at the moment, received a prolonged ‘bashing’ by members of the House of Lords this week. A summary of the 54 Lords (and Ladies) who spoke in the 8 hour long debate can be found on the Guardian.

ObiterJ notes that the major injustice with LASPO is not that the budget is being cut, but that legal aid will cease to exist in certain areas of law altogether. Access to justice will primarily depend on the type of legal problem suffered, rather than the merits of the case or the ability to pay. Legal blogger Lucy Reed, in an excellent post, disputes some of the arguments put by the Justice Secretary.

However, as the bill ping-pongs between the Houses, glimpses of hope may be appearing on the horizon given the government’s recent U-turns on the abolition of the Youth Justice Board and Chief Coroner’s post; a move welcomedby piBLAWG’s Laura Johnson, although still disappointed that judicial review will remain the only way of challenging coroners’ decisions.

According to the Daily Mirror, the effect of Lords opposition may be a u-turn bringing clinical negligence cases back within the scope of legal aid.

Swearing OK? F*** off!

The newspapers, senior police officers and politicians were lost for words when the High Court ruled that ‘swearing at police is not a crime’. However, Halsbury’s Law Exchange’s Sarah Lewis has made explicitly clear that although swearing in and of itself is not a crime, it may well constitute a criminal offence depending on the circumstances. In the circumstances of this case, it didn’t. Or at least there was insufficient evidence for a criminal conviction.

With some useful red boxes and a fig-leafed-dash of colourful language, Beneath the Wig outlines the judge’s reasoning, pointing out that the reporting of this case has been, to paraphrase, below par. Maybe the media concerned deserve to go on Adam’s legal naughty step, although it is probably still filled by the Guardian, whose decision allowing Freemen of the Land to contribute to Comment is Free has led David Allen Green to implore legal bloggers, tweeters and podcasters to continue to demystify the law responsibly, thus leaving such ‘quacks’ at the margin of society.

Other roundups

See lawthink’s latest human rights developments in the UK and Charon QC’s Without Prejudice, a discussion with David Alen Green covering Hackgate, Freemen ‘Cod’ Law, Politicisation of judges, Legal Aid and Privacy Law. ObiterJ has also written a post describing the state of play of human rights and access to justice in the UK.

In the courts

• Harvey v Director of Public Prosecutions [2011] EWHC B1 (Admin) (17 November 2011): Admin court: Swearing at the police did not constitute harassment, alarm or distress within the meaning of 5 (1)(a) of the Public Order Act 1986, but could in principle

• Mousa, R (on the application of) v Secretary of State for Defence & Anor [2011] EWCA Civ 1… Court of Appeal: Ministry of Defence’s current investigations into alleged systemic abuse in Iraq 2003/4 insufficient to satisfy human rights obligations. Public Inquiry may be only way forward. See, The unfolding aftermath of the Iraq war, ObiterJ.

• Modaresi, R (on the application of) v Secretary of State for Health & Ors [2011] EWCA Civ … Court of Appeall: Statutory appeals *must* be on time, as no discretion to extend time under CPR. Rule includes Mental Health Act cases.

• AO & Anor, R (on the application of) v Secretary of State for the Home Department [2011] E… Admin Court: Discretionary leave policy for Foreign National Prisoners breaches the no-fettering principle.

• Harvey v Director of Public Prosecutions [2011] EWHC B1 (Admin) (17 November 2011)Admin court: Swearing at the police did not constitute harassment, alarm or distress within the meaning of 5 (1)(a) of the Public Order Act 1986, but could in principle.

Case law commentaries from across the blogosphere

• Case Comment: Gale v Serious Organised Crime Agency [2011] UKSC 49, Martin Ryder QC, UKSC.

• Procedural fairness in asylum appeals, Ed Mynott, Free Movement. In SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, the Court of Appeal found that the lawfulness of a judge’s refusal to adjourn must be assessed on the basis of fairness, not Wednesbury unreasonableness, perversity or irrationality.

…and don’t forget to take a look at our recent posts:

• Rights, responsibilities and the new Aids denialism November 25, 2011 Rosalind English
• Bratza bites back November 25, 2011 Adam Wagner
• “Sons of Cadder” – Supreme Court rulings on legal advice during police interviews November 24, 2011 Rosalind English
• Successful challenge to library closures: lip service not enough for equality duties – Shaheen Rahman November 24, 2011 1 Crown Office Row
• Free speech in trouble in South Africa November 23, 2011 Rosalind English
• Investigation team “lacks necessary independence” for MOD ill-treatment allegations November 23, 2011 Rosalind English
• Rights on the rocks: Some Bill of Rights Commission responses November 22, 2011 Adam Wagner
• How private are patients’ dental records? November 21, 2011 Richard Mumford