Gary McKinnon, Prince Charles’ letters and free speech – The Human Rights Roundup

22 October 2012 by Sam Murrant

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

This week, free speech and social media has again created a lot of online commentary, with UKHRB founder Adam Wagner chairing a panel discussion on the subject. Also hitting the blogosphere this week: the government’s proposal to opt out of 130 EU criminal law measures; the progress of the Azelle Rodney Inquiry; comments on the Gary McKinnon case and Prince Charles’ letters to government ministers.

Free Speech and Twitter

The recent spate of criminal sentences under the Communications Act 2003 for “offensive” comments published on social media sites has alarmed many in the legal profession (and outside it). Benjamin Ward of Human Rights Watch, writing in the New Statesman, considers the inconsistencies in the attitude to free speech in the UK. Firstly, the UK protects free speech in the “real world” through such traditions as Speaker’s Corner (though one can be arrested for calling a police horse “gay”), while those who offend through social media may fall foul of the criminal law; secondly, the Communications Act under which these prosecutions are brought pre-dates the invention of Twitter, bringing up questions around whether the law is fit for purpose.

The suitability of the Communications Act was one of the major issues considered at the panel discussion on free speech and Twitter chaired by UKHRB’s Adam Wagner this week. For those who missed the event you can read all of the tweets collated here. Alex Aldridge has posted a summary of the (rather divergent) views of the main speakers in this post. He concludes with the opinion that the Director of Public Prosecutions, Keir Starmer, is likely to suggest with a more relaxed, US-style set of guidelines on when prosecutions will be brought. See also this post by Adam Wagner linking to his interview on the BBC’s Law in Action.

Finally on the subject of social media and free speech, this week Twitter has exercised its local censorship policy to block neo-Nazi tweets in Germany from a German organisation at the request of the German government – see this BBC article for more information.

EU Opt-Out

This week Theresa May delivered a statement in the House of Commons on the UK’s position on opting out of EU criminal law measures introduced by the Lisbon Treaty, in which she explained that because the UK can only opt out of all 130 measures or none of them, the government’s current thinking is that they will opt out of all and opt back in to certain measures that are in the national interest. The BBC has published an article on this speech, which includes reactions from critical Labour MPs and congratulatory Eurosceptic Conservatives.

Alan Travis, writing in the Guardian, expresses surprise that the previously pro-EU Home Secretary is deciding to opt out, given that this may harm the UK’s ability to prosecute international crime and terrorism, and in particular to secure extradition to and from other EU states, and thinks that the decision is a political decision to reclaim far-right voters from UKIP for the Tories. ObiterJ has also weighed in on this issue, observing that if the UK wants to remain in the EU (as it seems to) it will need to opt back in to at least some of the measures on a practical level, as criminality respects not national boundaries. See also Jodie Blackstock’s guest post on UKHRB, which explains why the opt-out decision is all-or-nothing, explores the potential consequences of opting out and offers some insight into which measures the UK may decide to opt back into. Finally, see Fair Trials International’s useful Q&A document on the topic.

Gary McKinnon will not be extradited

As was widely reported last week, Gary McKinnon will not be extradited to the US for hacking into the Pentagon on human rights grounds, as the Home Secretary decided that the evidence showed a real risk of suicide if McKinnon were extradited. David Allen Green, writing in the New Statesman, has sought to explode what he sees as the mainstream media’s misleading of the public as to the actual facts of the case. He discusses the seriousness of the allegations against McKinnon, the strength of the US case against him and the fact that the US was prepared to accommodate his Asperger’s syndrome. Green does agree that if the evidence bore out the Home Secretary’s decision, then she was right to make it.

Another interesting angle on the case was provided by Joshua Rozenberg in the Guardian. Rozenberg sees the Home Secretary as having been forced to resort to human rights grounds to block McKinnon’s extradition under political pressure from the “Free Gary” campaign (which Theresa May is seeking to avoid in future by delegating this type of human rights decision to the courts).

Azelle Rodney Inquiry

This week, the High Court refused to quash the earlier decision by Sir Christopher Holland (chairman of the Azelle Rodney Inquiry) that the Inquiry legal teams should be able to access covert aerial surveillance footage. Rosalind English’s post analyses the legal issues around Sir Christopher’s decision – in short, derogation from full disclosure is to be avoided unless strictly necessary in the public interest, which was not the case here, despite the Met’s argument that the footage should remain secret to avoid jeopardising future operations.

Prince Charles’ Letters

Following the judicial decision to allow publication of letters sent to government ministers by the Prince of Wales, the Attorney-General Dominic Grieve has exercised his discretion to veto the publication under section 53 of the Freedom of Information Act, arguing that “exceptional circumstances” justified non-disclosure. See also this BBC article, which provides some more context and analysis from the BBC’s royal correspondent. The Attorney-General’s statement of reasons can be found here; he justifies his decision as safeguarding the Prince’s political neutrality, helping prepare him for kingship and because there is nothing objectionable in the letters.

James Wilson of A(nother) Lawyer Writes is unconvinced of the constitutional value of Prince Charles’ letters to government ministers, describing him as a “semi-professional gadfly”, and unimpressed by the Attorney-General’s reasoning. He considers that it is a “stretch” to see lobbying the government as educating the Prince in its business, and that if disclosing his letters would harm his constitutional political neutrality (which is doubtful due to the Prince’s opinionated nature) then the letters should not have been written in the first instance. Finally, he concludes that if there was indeed “nothing improper” in the letters then that would be a point in favour of, not against, their release.

In the courts

Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) Scope of inquest into 14-yr-old methadone addict’s death shouldn’t have been expanded by art 2 ECHR, rules High Court.

Metropolitan Police Service, R (on the application of) v Chairman Of The Inquiry Into The Death Of Azelle Rodney [2012] EWHA 2783 (Admin) Azelle Rodney Inquiry: High Court rejects Met’s challenge to disclosure of sensitive 2-hr aerial surveillance footage.

EM (Eritrea) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1336 Home Office can continue returning asylum claimants to Italy under “safe 3rd country” system. Court of Appeal (Sir Stephen Sedley) finds no systemic deficiency in Italy’s asylum/reception procedures.

Michael Black and John Morgan -v- Susanne Wilkinson [2012] Michael Black and John Morgan won discrimination case against Christian proprietors of a Berkshire Bed and Breakfast who refused them a double room because of religious objections to homosexuality.

Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 Court of Appeal strikes out claim of two soldiers killed in Snatch Land Rovers on human rights grounds but allows negligence claims to proceed

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UKHRB Posts

• Standing and discretion – who acts for ospreys? October 19, 2012 David Hart QC
• Asylum conditions in Italy not severe enough to prevent removal of refugees from the UK October 19, 2012 Rosalind English
• The revolving door of EU criminal justice – Jodie Blackstock October 18, 2012 1 Crown Office Row
• Ask and you shall receive – finally, an English translation of the Rachel Corrie judgment October 18, 2012 Adam Wagner
• Can we keep our genomes quiet? Some suggestions from the US October 18, 2012 Rosalind English 
• Law in Action on social media prosecuting October 16, 2012 Adam Wagner
• Azelle Rodney Inquiry lawyers can see surveillance film footage October 16, 2012 Rosalind English
• Extraordinary rendition, forced labour and evidence obtained by torture – Antoine Buyse October 16, 2012 1 Crown Office Row

by Sam Murrant