Monthly News Archives: September 2014


When does a righteous campaign shade into harassment?

30 September 2014 by

Chessington_World_of_Adventures_Kobra2Merlin Entertainments LPC,  Chessington World of Adventures Operations and others v Peter Cave [2014] EWHC 3036 (QB)  25 September 2014 – read judgment 

This case explores the extent to which a campaign of criticism, conducted by internet and email, can merit restraint by the civil courts. As the judge says, whatever the aims of the campaign in question, its supporters may, in the course of their activities, annoy, irritate, and upset companies and individuals.  But should the courts interfere, before the question whether the campaign is justified has been decided?  And to what extent is such a campaign a criminal offence?

This particular dispute concerned a series of communications by the defendant to the general public about the inadequacy of safety measures and other shortcomings of the claimants’ amusement parks. The claimants contended that Dr Cave’s communications with the public and with their employees were defamatory, and in breach of confidence, and that they were thereby entitled to stop him, before any trial, by relying on the statutory tort of harassment. They therefore applied for an interim injunction restraining the defendant from setting up websites and sending mass emails regarding the issue of safety in theme parks. The question before the judge was whether they should wait until they had established defamation and/or breach of confidence, before the court granted a remedy.
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Is this the best human rights correction ever? Or the worst?

29 September 2014 by

Screen Shot 2014-09-29 at 13.11.53Even by the usual brazen standards of human rights reporting, this correction from The Daily Mail stands out. Obviously, we weren’t meant to take Richard Littlejohn’s August 2014 comment piece seriously, it being semi-rabid comment bait, but surely the article should have included a health warning to that effect?

In”seriousness”, the Mail’s response to the false claim that “Others have won the ‘right’ to heroin and gay porn behind bars” is pathetic. The claim which has been corrected was not presented as a joke and it would not have been understood as one. As it happens, Littlejohn was probably referring to the longstanding human rights myth that a serial killer, Dennis Nilsen, was allowed to receive hardcore gay porn in jail thanks to human rights law. His case was in actual fact refused permission to proceed in the High Court – page 30 of this government report gives  more detail:

Dennis Nilsen’s application was refused by the single judge at the permission stage. He did not establish that there was any arguable case that a breach of his human rights had occurred, nor that the prison’s rules were discriminatory. He also failed to receive any greater access to such materials as a result. The failure of his application at the first hurdle was not widely reported, nor his further failure on renewal.

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Legal Aid Challenge Success, Assisted Suicide and the Future of UK Human Rights – the Human Rights Roundup

28 September 2014 by

Grayling HRRWelcome back to the UK Human Rights Roundup, your regular party gathering of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

This week, the Conservative Party will unveil its plans for human rights reform in the UK. In other news, Chris Grayling’s decision to drastically reduce the number of legal aid contacts granted is successfully challenged, while a prosecution for assisted suicide keeps the assisted dying debate alive.

Tories Unveil Plans for Human Rights Reform
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The rule of law needs reaffirmation – Julinda Beqira and Lawrence Mcnamara

25 September 2014 by

PAjusticeOver the next year the United Nations will discuss and adopt an agenda for global development for 2015 – 2030. It will set out the aims countries should strive to achieve in order to secure economic, social and environmental development.

One of the most contentious points of debate – and one of the most important – will be what role the rule of law will occupy in the post-2015 development agenda. Its significance cannot be overstated as it reaches into the very heart of how our future will be shaped.

This year’s General Assembly meetings commence on 24 September and run until 1 October. They will be crucial in shaping the post-2015 agenda. Of the paths the GA may take, there are two main options:

  • in one path, the rule of law will be stated as a goal that States should strive to achieve.
  • in the other, it will not be.

What path should the UN take? And what path will it take?
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The Monstering of Human Rights

22 September 2014 by

On Friday 19 September I spoke at a very interesting conference at the University of Liverpool on Human Rights in the UK Media: Representation and Reality. My talk was entitled The Monstering of Human Rights. You can download it by clicking here (PDF). It is also embedded below.

As always, comments are welcome. There is quite a lot in there tying together some of the themes I have been writing about over the past few years. As a number of people pointed out in Liverpool, it is too easy to point to errors in human rights reporting as proof that all criticisms of the human rights system are bogus, which is clearly wrong. But nonetheless, misinformation and exaggeration is an important feature of the public debate on human rights and it is interesting to consider why that might be the case, and – a question which has troubled me over the past few years – how to stop it happening.

I expect the issue of human rights reform will arise again now that the Scottish referendum process has concluded and the political parties are setting out their agendas for 2015. It seems pretty clear that the Conservative Party will promise to repeal the Human Rights Act but what they will do in relation to the European Convention on Human Rights is still very much an unknown. My expectation is that they will not promise to withdraw from the ECHR. Not yet, anyway. Labour and the Liberal Democrats are likely to retain the existing system, with a few tweaks. But whoever wins the election, there is a huge amount of work to be done to repair the reputation of human rights laws in the UK and convince the public that they are, on balance, a good thing.

PS. if any kind soul would like to turn the PDF version into a HTML linked blog-ready post, I would be eternally grateful! Email me if you would be interested, you would of course get full credit in the ensuing post/s.

View this document on Scribd

The Sun’s aggressive, then submissive, response to my complaint on its human rights reporting

17 September 2014 by

BxuWgJ_IYAAawwN.jpg-largeThe Sun have printed another correction today in relation to its misleading human rights reporting. The correction, on page 2, can be read online or to the right of this post.

The correction was the outcome of a complaint I made about this article – I posted on it here. The main part of the correction relates to the entirely false claim that “The European Court stopped a British judge imposing a whole-life tariff on Ian McLoughlin”. The reality is that although judges were unsure whether they could impose the orders following Vinter v UK in the European Court of Human Rights, the Court of Appeal clarified in February 2014 that they definitely could. The Sun have now admitted that was the case.

I am happy that the correction has been made although as I have said before, the damage has to a large extent been done as – let’s be honest – how many people read the clarifications and corrections box (which is located immediately adjacent to the eye-catching Page 3…).

But what I found most interesting about the process, which was started by the Press Complaints Commission and concluded by its post-Leveson successor, the Indepenndent Press Standards Orgaisation (IPSO), was the initial response to my complaint (PDF here) by The Sun’s Ombudsman, Philippa Kennedy OBE, which I thought was needlessly aggressive and demonstrates a worrying approach to this issue. I will select a few choice quotes:

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Law of armed conflict means that anti-detention provision in ECHR may be disapplied re Iraqi detainee

16 September 2014 by

camp-bucca1Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment

This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution.  In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.

The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point.
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Victims’ Rights, the EU Charter, and Passport Confiscation – the Human Rights Roundup

15 September 2014 by

British_passport HRRWelcome back to the UK Human Rights Roundup, your regular (except for August) last night at the human rights Proms. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

In recent news, the government outlines proposals for increased rights for the victims of crime, as well as for the revocation and confiscation of passports for ISIS fighters returning to the UK. In other news, the legality of the EU Charter comes back to haunt Chris Grayling once again.

New Rights for the Victims of Crime
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A novelist enters the Family Division

12 September 2014 by

71BL6-VNgqL._SL1500_In his prolific career, writer Ian McEwan has brought us into the minds of physicists, neurosurgeons, conductors,  cultural and cold war spies and even stalkers. His most recent triumph is to have stepped deftly into the life of a High Court judge in the Family Division.

The Children Act is a short novel of great subtlety and tenderness. In his acknowledgements he says he has drawn on a “superbly written judgment” by Sir James Munby evaluating a child’s best interests in a dispute over ultra-orthodox education of the child of estranged Jewish parents (see Karwan Eskerie’s post on this case). One can see how McEwan was inspired by the judge’s nuanced approach, in which he sought to balance the significance of social and familial links as against an individual’s wellbeing; after all, a novelist’s job is to explore the nature of unhappiness. How irresistible then is an institutional figure whose very job it is to determine happiness and its opposite?
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Three human rights events

11 September 2014 by

roadshowA quick note to alert you to three events I am speaking at in the next few weeks which may be of interest to readers. I’m on a bit of a roadshow.

1. Do religious courts protect human rights? 16 September 2014, 6:30pm

Well, do they? Come to JW3 on Finchley Road and find out! The event is organised by René Cassin and the UK Task Force. It is free but you need to register.

2. Human Rights in the UK Media: Representation and Reality, Friday 19 September 2014, 9:00am-5:30pm

I am excited for this conference at Liverpool University. There are a lot of excellent speakers, not least Professor David Mead who is giving the keynote. Register here (£25/£15 for students).

3. From Magna Carta to ECHR: do we need a British Bill of Rights? Monday 6 October 2014, 18:30-20:00

This is part of the Battle of Ideas festive. The event is at Foyles Bookshop on Charing Cross Road. The event should be sparky given the range of views on the panel: as well as me, Helen Mountfield QC, Jon Holbrook and Rupert Myers. Chaired by David Bowden. £7.50/£5 concessions.

Students without indefinite leave to remain are ineligible for student loans

11 September 2014 by

loanimage0 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) – read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.

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