Round Up- Sir Cliff, stop and search, and the definition of fatherhood

23 July 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

In the News:

Sir Cliff Richard won his privacy case against the BBC, prompting a wide-ranging debate about press freedom.

Following an allegation of historic child sexual abuse, South Yorkshire Police raided Sir Cliff’s home in August 2014. The BBC decided to broadcast live footage of the raid which it filmed from a helicopter. Sir Cliff was interviewed under caution, but never charged.

The singer argued that the BBC’s coverage of the raid amounted to a ‘serious invasion’ of his right to privacy for which there was no lawful justification. In particular, he said his right to privacy under Article 8 ECHR had been undermined, and that the Data Protection Act 1998 was breached. The BBC submitted that it was tipped off about the police investigation, and felt it had a duty to pass the information to the public.

The High Court held that a suspect in a police investigation was capable of having a “reasonable expectation of privacy”, depending on the facts of his/ her situation. There was no “genuine public interest” in the police investigation. It further held that damage to reputation may form part of a breach of the right to privacy. Mr Justice Mann awarded initial damages of £210,000. The BBC must pay 65% of the damages, with South Yorkshire police paying the remainder.

Sir Cliff’s solicitor said his client had offered to settle for “reasonable” damages and an apology, but this gesture had been rebuffed.

The BBC is considering whether to appeal. Fran Unsworth, the BBC’s director of news and current affairs, apologised to Sir Cliff outside court by saying “in retrospect, there are things we would have done differently.” South Yorkshire Police also apologised for its mistakes.

The ruling has already attracted controversy. Fran Unsworth described the case as creating “a significant shift” against press freedom. Tony Gallagher, editor of the Sun, said he feared “suspects will assert privacy rights” in order to stop press stories. David Malone, of Red Lion Chambers, said it was important that the police “at the very least consider reporting the name of an individual, when that action may enable other victims to come forward to strengthen the case against that individual”.

By contrast, the Conservative MP Anna Soubry has called for a change in the law to make clear that suspects should not be named unless they are charged.

Paul Wragg has suggested that Sir Cliff was wrongly decided, whilst Jonathan Coad argued oppositely.

For analysis of the judgement itself, see Patricia Londono’s post for the Blog here.

In Other News….

• The Independent Inquiry into Child Sexual Abuse was fined £200,000 by the Information Commissioner’s Office (ICO). On the 27^th February last year, an employee emailed 90 participants of a public hearing. However, the staff member mistakenly omitted to use the ‘Bcc’ field, meaning all recipients could see who else had received the message. 52 people’s full names were released, and at least one of them said they were ‘very distressed’ by the breach. The ICO received 22 complaints about the email. It said that the mishap breached the Data Protection Act 1998 and put vulnerable people at risk. The ICO found that the Inquiry failed to use an email account which could send an individual email to each participant, and to train staff properly. The Inquiry had also breached its own privacy notice by sharing participants’ email addresses with an IT company which it had hired to manage the mailing list. The Independent reports here.
• Home Office figures were released this week suggesting that only 1 in 10 crimes result in a suspect being charged. Figures show that the police closed 48% of all cases because no suspect was found, with the detection rate being the lowest since 2015. The number of knife offences has risen by 16%, murders by 12%, and robberies by 30%. Overall, crimes recorded by police went up 11%. Charging in sexual offence cases remains particularly low, at 5%. The Home Office said that the police’s case load was increasing, and that more of the recorded crimes were the most challenging to investigate. The Telegraph reports here.
• 4 members of the group Pussy Riot have been jailed for 15 days because they ran onto the pitch of the World Cup final. Three women and one man dressed as police officers and invaded the pitch, before being dragged away. The organisation was protesting against human rights abuses in Russia as well as condemning the policies of FIFA. The members were banned from attending sporting events for the next three years. They were also accused of violating the rules for spectators at sporting events and wearing police uniforms illegally. Huff Post report here.
• Vote Leave was fined £61,000 by the Electoral Commission after breaking electoral law. The Commission said the group had exceeded the £7 million spending limit by transferring £675,315 to another organisation called BeLeave. BeLeave then transferred the money to Aggregate IQ, a Canadian digital marketing firm. Both institutions have been referred to the police. The Electoral Commission found evidence of a common plan and said Vote Leave had refused to cooperate with its investigations. Vote Leave stated that the Commission’s report was inaccurate and complained that no-one from Vote Leave was interviewed at any point. The BBC reports here.

In the Courts:

• K (A Child) v The Secretary of State for the Home Department: The case concerned the definition of a father for the purposes of the British Nationality Act 1981. The claimant’s biological father was British. However, at the time of the claimant’s birth her mother was married to a Pakistani man. The Secretary of State argued this Pakistani man was the claimant’s father for the purposes of the 1981 Act. The disagreement was significant because, by virtue of s.1, a child may establish their nationality through their father. The court held that since the acquisition of nationality through a parent is within the ambit of Article 8, Article 14 ECHR was also engaged. The claimant suffered a clear detriment in not being able to acquire her biological father’s nationality as of right (not least that it made her subject to immigration controls). The court held this amounted to discrimination, since it left the claimant dependent upon the Secretary of State exercising his discretion to grant nationality. This discrimination was not justified, because it failed to achieve a fair balance between policy goals (such as legal certainty) and the interests of the child.

• Karia v The Secretary of State for the Home Department: The appeal related to the lawful exercise of the power to stop and search baggage, which is contained within Section 78(2) of the Customs and Excise Management Act 1979. The Appellant was searched following a flight from Amsterdam. No reason for the search was given. The court held that the statute in its amended form explicitly removed the requirement for reasonable suspicion of the individual. Instead, searches are allowed because they are “necessary” for a proper and efficient system inside a busy international airport. The test of “necessity” meant that there was no duty to give individual reasons for the exercise of the search power. This conclusion was supported by the finding that Parliament could not have set a higher bar for the search of baggage than the examination of an individual. The appellant argued in the alternative that a natural reading of the statute meant it must be “necessary” to stop and search a particular individual, rather than a general need for searches within a system. This submission was also rejected by the court.

• Faulkner, R (on the application of) v Director of Legal Aid Casework: This appeal arose from the appellant’s application to the Legal Aid Agency for a waiver of the ‘statutory charge’ (a term used to describe contributions towards the cost of legal aid, payable at the end of a case). The appellant made this request so that the damages he had been awarded for unlawful detention could be preserved. His application was refused on the basis of regulation 47 of the Community Legal Service (Financial) Regulations 2000, which only allows a waiver at the beginning or middle of litigation, not at the end. The court held that when solicitors apply to the Legal Aid Agency on behalf of a client, they should request an express decision as to whether the case has ‘significant wider public interest’ and so falls within regulation 47. A decision cannot be considered in retrospect. The appellant also argued that his rights under Article 5(5) ECHR were infringed by the refusal to waive the ‘statutory charge’. The court rejected his reasoning. It held that the appellant could not be insulated from the consequences of his litigation by relying on the Convention. Article 5(5) did not establish a special right to compensation which was incapable of being eroded by the statutory charge.

On the UKHRB

• Patricia Londono has written an article examining how Sir Cliff Richard v BBC will affect police investigations.
• Rosalind English considered Sherratt v Chief Constable of Greater Manchester Police, which concerned the liability of emergency services. Rosalind also wrote about the upcoming appeal to CN and Anor v Poole Borough Council.

Events:

• Marriage Equality: Winning at Westminster – Ged Killen MP: Amnesty, 2^nd August, Queen’s University Belfast. More information here.
• Association of Human Rights Institutes (AHRI) 2018 Annual Conference: 7^th and 8^th August, Edinburgh University. More information here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com