Rules, Rights (rings) and the Twitter Joke – The Human Rights Roundup

30 July 2012 by Sam Murrant

Gratuitous Olympics image

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Whilst the eyes of the world are on London’s Olympic Games, the eyes of this blog are on a series of important rulings which our judges produced last week just before they took the short stroll from the Royal Courts of Justice to Horse Guards Parade watch the beach volleyball. There were three particularly important decisions: firstly, Paul Chambers won his appeal against criminal conviction following a Twitter Joke. Secondly, the recent Alvi case clarified the meaning of the word “rule” in immigration law as a response; and finally the RT (Zimbabwe) case established that a person subject to deportation is not to be expected to lie about one’s beliefs (or lack thereof) to avoid persecution.

Beyond a Joke

This week, Paul Chambers’ appeal to the High Court was successful, overturning his criminal conviction for the publication of a ‘bomb threat’ to Robin Hood airport on Twitter out of frustration that the airport was closed. The decision has been widely hailed as a victory for` common sense, with many surprised that criminal proceedings were ever brought against Chambers.

An informative case comment on Inforrm describes the prosecution as “silly”. Carl Gardner posted a short commentary just after the decision on Headof Legal, including embedded audio responses from Paul Chambers, his legal team (John Cooper QC and solicitor David Allen Green, who also wrote an article on this case in the New Statesman) and comedian Al Murray (a longtime critic of the prosecution in this case).

The outcome is obviously good for Paul Chambers, and other Twitter users – as explained by Isabel McArdle in her commentary on this case for UKHRB. Paraphrasing Shakespeare’s King Lear, the Lord Chief Justice told Twitter users they are free to say “what they feel” as opposed to only “what they ought to say”. Chambers’ conviction was overturned on the basis of his statement not being menacing in character (so the mental element of the crime did not need to be addressed). However, statements which are not obviously jokes (and which do genuinely menace/threaten readers) may still be criminal in nature; the judgment affirmed that Tweets are “messages” for the purpose of UK communications law, as pointed out by this post on out-law.com – and they are so regardless of who reads them or was intended to read them. Finally, Obiter J’s take is always worth reading.

What is a “rule”?

Section 3(2) of the Immigration Act 1971 requires that all “rules” that affect practice under the Act (to refuse entry or leave to remain in the UK) be laid before Parliament. In Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33 case, the Supreme Court decided that “rule” was to have the widest possible meaning, to avoid confusion and excessive litigation (which had prevailed prior to this decision).

The new definition is that a “rule” is any requirement which if not satisfied leads to an application for leave to enter or remain to be refused  – so essentially anything the Secretary of State wants to rely on to deny an application must be laid before Parliament. For a more detailed commentary on this important case, see this post by mkp on the UK Immigration Law Blog, which also includes the full Supreme Court decision. In the wake of this decision, a new Statement of Changes to the Immigration Rules came into force on July 20th – they are explained by mkp in this post.

A Negative Right

The case of RT (Zimbabwe) established that refugees should not be expected to lie and feign loyalty to a regime that do not support in order to avoid persecution – the applicant was required by the Mugabe administration positively to prove his support of the regime, hence his neutral outlook was equally as risky as being anti-Mugabe. This case extends the “HJ Iran” principle that one should not be expected to lie and cover up one’s sexuality to avoid persecution, as discussed in this post on the UK Supreme Court blog, which points out that if there is a real risk that a person of neutral political opinion will be persecuted, that person deserves refugee status. It will also, as pointed out by this post on the Freemovement blog, make returning just about any asylum seeker from Zimbabwe effectively impossible.

One interesting implication of this decision is the hint at “negative rights” – while most human rights are the right to do something, this case involves the right not to do something (here, not covering up one’s political beliefs). Anita Davies, in her case comment for the UKSC blog, identifies these “negative rights” as being potentially implicit in all positive rights (as their logical inverse), because free choice is inherent to human dignity.

Rosalind English, posting on UKHRB, goes further in her case comment, stating that this decision contains the first steps towards an explicit human rights to hold no beliefs – something that would certainly be useful for atheists or agnostics suffering persecution as easily as it would be for politically neutral Zimbabweans, and an important step towards total freedom of thought.

Other roundups

As always, the Law Think UK human rights roundup is worth a look, and for those who like their human rights news with an Olympic feel, see Recommended Reading: Human Rights and the Olympic Games from the excellent Human Rights in Ireland blog. Finally, the last Inforrm Law and Media Roundup before the summer.

In the courts

RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38Supreme Court: asylum seekers cannot be expected to lie or dissemble in order to achieve safety in their own country.

Đorđević v Croatia – Reported on Mental Health and Mental Capacity Law Blog Failure to protect against disability related harassment violates Article 3

AA v Associated Newspapers Ltd [2012] EWHC 2103 (QB)Publication of photograph of child said to be fathered by celebrity breached privacy rights. Associated Newspapers to pay £15k in damages.

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UKHRB Posts

• Twitter users “free to speak not what they ought to say, but what they feel” July 27, 2012 Isabel McArdle
• The right not to hold any belief is fundamental, says Supreme Court July 25 2012 Rosalind McEnglish
• Outlawing God? The limits of religious freedom July 25, 2012 Rachel Marcus
• When human rights hit the private law of damages for death July 24, 2012 David Hart QC

by Sam Murrant