The Round Up – locking up leakers for longer
20 February 2017
Information leaks have led to some slippery situations for some in recent weeks. Not even David Beckham escaped unscathed, when his disappointment at being overlooked for a knighthood was revealed in a series of expletive-ridden emails by Football Leaks earlier this month, and saw him vilified by the British public for his attitude to charity, tax and Katherine Jenkins.
Donald Trump too found himself insisting at a press conference, and – as ever – on his trusty twitter account, that his former US national security adviser had been a victim of criminal and illegal leaks. Michael Flynn was forced to resign after allegations emerged that he had conducted meetings over diplomatic issues with the Russian ambassador before holding office at the White House, even though it is illegal for private citizens to engage in US diplomacy. These revelations have only increased concerns over the US’ relationship with Russia.
Back in the UK, the issue of intelligence leaks has been a hot topic this month since the Law Commission unveiled its latest consultation paper which seeks to reform the Official Secrets Act. The paper was conducted in an effort to modernise UK legislation, with the Official Secrets Act harking back to 1911. Many have argued that it is in dire need of reform in the technology age of the 21st century, and there has been particular pressure for this to occur since the disclosures by Edward Snowden.
What is the Law Commission proposing?
The consultation paper has suggested a number of reforms. A fairly sensible suggestion appears to be the removal of anachronistic code words and terms such as “enemy”, which they claim might inhibit potential prosecution. What has elicited far more attention however, are the proposed reforms regarding offences falling under this Act. For example, the Law Commission has criticised the low sentence term of 2 years for unauthorised disclosure of information, comparing it to other jurisdictions such as Canada where the maximum sentence is 14 years. It has also suggested redrafting the offence of espionage so that someone who is not only capable of committing this offence for communicating information, but even for gathering or obtaining it.
What’s the problem?
There has been a virulent reaction to what has been seen as an attempt to gag freedom of speech. There are concerns that there would be wider scope for investigative journalists to be prosecuted for what they publish or even obtain, and that the imposition of larger sentences would be far too harsh and inhibit whistleblowers, whom many consider provide an essential service in ensuring transparency from the government.
The Law Commission has emphasised that they are not intent on gagging those with real concerns. It has previously been suggested that there should exist a statutory public interest defence for whistleblowers – advocates of this include the former GCHQ whistleblower Katherine Gun. The Law Commission however, has concluded that the problems with introducing such a defence outweigh the benefits; rather, it has suggested alternative ways to address such concerns, such as a statutory commissioner who could receive and investigate complaints.
But wasn’t this researched?
There have also been suggestions that the Law Commission has been misleading in its claims that it conducted wide research. No actual whistleblowers appear to have been approached, nor does there seem to have been much discussion with media groups. Liberty and the Guardian have rejected the Law Commission’s assertions that they were properly consulted in the production of this paper: Liberty claimed that it had not understood any meeting to have been a consultation, while the Guardian has stated that any interactions were informal and brief.
What happens now?
The open public consultation will run till the 3rd April. You can access the consultation papers here, and you can contribute with your responses by emailing email@example.com.
IN THE COURTS:
R (on the application of Hicks and others) v Commissioner of Police for the Metropolis: in a test case four appellants claimed that they had been unlawfully detained by the police, but the Supreme Court unanimously dismissed the appeal and held that there was no violation of their right to liberty under Article 5 of the ECHR. The appellants were among a number of claimants who had been arrested by the police on the day of the Royal Wedding between the Duke and Duchess of Cambridge in April 2011. While some had dressed up as zombies in order to protest at the cuts affecting LGBTQ communities, others had planned to attend “Not the Royal Wedding” street parties. The police claimed to be concerned that they posed a threat to the peace, and the Court held that the police were justified in doing so, for while Article 5 must protect individuals from arbitrary detention, this must not make it impracticable for the police to perform their duties and protect the general public. The Court chose to follow the minority view in the ECtHR case Ostendorf v Germany that detention can be lawful when it is for preventive purposes and is followed by early release.
Great Ormond Street Hospital for Children Foundation NHS Trust v NO & KK & Ors: A High Court judge has ruled that doctors could switch off the life-support machine of a baby despite her parents’ continued objections. The eight-month-old baby, MK, was diagnosed with hypo-plastic left-heart syndrome before she was born; her heart has not developed properly and doctors have predicted she has weeks left to live. Russell J emphasised that, while in principle it was the responsibility of parents to make decisions on behalf of their child (which included agreeing for some treatment to be withheld), it was ultimately a question of what was in the baby’s best interests. It was held that it was not in MK’s best interests to carry out the intervention and invasive treatments which her parents sought as this would only prolong her suffering, but it was also noted that any decision in such a case would always be wholly fact-dependent.
IN THE NEWS:
A UN report has ben released detailing the growing violence directed at the Rohingya population in the northwest Rakhine State of Myanmar. Animosity continues to be directed towards the Roghingya Muslims in this deprived area, whom the Rakhine view as Bengali “immigrants.” The report has been produced from interviews with 204 victims of the violence, who have since fled to Bangladesh, where there are now estimated to be approximately 66,000 refugees. Almost half of those interviewed claimed that a member of their family had been killed or was missing, while over half of the 101 women interviewed stated that they had been subject to rape or sexual violence. Such treatment of the Rohingya has reportedly been carried out under the guise of “area clearance operations” by the Myanmar security services, and the Myanmar Government maintain that these accusations are no more than mere “propaganda.” The UN report however, has condemned the violations against the Rohingya as possible crimes against humanity. The UN’s High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, has urged the Myanmar Government to “halt these grave human rights violations against its own people” and called upon the international community to intervene.
Turkey has defied a court order from the UN and failed to release a judge who was detained after the coup attempt last year. Judge Aydin Sefa Akay, one of thousands of officials who have been detained since last summer, is a judge for the United Nations Mechanism for International Criminal Tribunals. He is currently meant to be reviewing the case of former Rwandan minister Augustin Ngirabatware, who was convicted for his involvement in the Rwandan Genocide. According to the UN’s Mechanism for International Criminal Tribunals, Judge Akay should be protected by diplomatic immunity, and it had ordered Turkey should “cease all legal proceedings against Judge Aydin Sefa Akay and… take all necessary steps to ensure his release from detention, no later than 14 February 2017.” Turkey, however, has ignored this court order, which potentially leaves it in breach of Security Council Resolution 1966 (2010); Ngirabatware’s lawyer, Peter Robinson, has since threatened to report it the UN Security Council. The situation jeopardises the status of an international independent judiciary, and highlights wider concerns about human rights abuses in Turkey.
Romance was certainly dead for one couple this Valentine’s Day: Tini Owens was battling to end her divorce in the Court of Appeal, while her husband Hugh Owens maintained that the marriage had not irretrievably broken down and that they still had a “few years” left to enjoy. Mrs Owens, who claims she is “desperately unhappy,” is seeking to overturn Judge Toulson’s decision from last year and divorce her husband of 39 years. Yet, as Sir James Munby, the most senior family judge in the UK, observed in this case, “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.” Indeed, many lawyers have called for reform of divorce legislation: the Supreme Court’s Lady Hale has advocated the introduction of “no-fault” divorce, as has top divorce lawyer Ayesha Vardag, who has hailed the current system a “barbaric relic of former times.”
Lord Neuberger yesterday appeared on BBC Radio 4’s Today Programme where he addressed the reaction from the press over the Article 50 Brexit case. While the President of the Supreme Court admitted that the press were lawful in their coverage, he nevertheless condemned it as unfair to the judiciary and warned that it risked undermining the rule of law. He furthermore commented that the Government and its ministers had clearly learnt from their mistakes in being too slow to do so in defence of the High Court judges, since they had responded suitably and swiftly to defend the Supreme Court in the aftermath of the appeal. On the other hand, today Michael Gove has warned against the judiciary becoming too assertive, which he claims risks generating controversy that in turn will undermine the rule of law.
The Supreme Court is currently looking not only for new justices, but even a new President. Lord Neuberger, Lord Toulson and Lord Clarke’s retirements this year have created the possibility of up to four new judges by the end of the year. The need to diversify the Court was also highlighted in the Today Programme, as it is currently comprised of all white justices and can boast only one woman. Apply here now!
by Poppy Rimington-Pounder