A Landmark Defamation Case and Child Spies: The Round Up

Conor Monighan brings us the latest updates in human rights law

In the News:

The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.

Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.

As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.

Much of the case will be heard in private over the next week.

In Other News….

• In another high-profile case, the High Court was told by Just for Kids Law that the police have been putting children in danger by using them as spies. As part of a judicial review, the court heard how children are increasingly being used in police operations because of their involvement in serious crime (particularly drugs and sex rings). This practice, it was argued, unlawfully puts children at risk of “severe physical and emotional harm”. The charity also argued that there are inadequate safeguards to protect children, and that this violates both domestic and international law. The police are allowed to use child spies by virtue of the Regulation of Investigatory Powers Act 2000. More from the Independent here.
• JUSTICE, the think-tank and campaigning organisation, has recommended that some paedophiles should be sent on training courses aimed at tackling the root causes of their behaviour, rather than being prosecuted. The aim would be to ease pressure on the justice system. The Victims Commissioner, Dame Vera Baird, has endorsed the proposals. However, the scheme has already attracted criticism. JUSTICE has stated it would be limited to individuals who have never been convicted of a sexual offence before. The programme would only apply to those charged with ‘less serious’ offending and failure to complete the programme would lead to prosecution. More from the Mail here.
• The Women and Equalities Committee has called for a ban on the use of non-disclosure agreements (NDAs), arguing it allows individuals to continue abusing others. The Chairwoman of the organisation, Maria Miller, described NDAs as “destructive”. The group of MPs also recommended changes in the law to ensure any confidentiality clauses are written clearly, and that a senior manager should be made accountable for their use. The committee concluded that difficulties in accessing employment tribunals are perpetuating problems with NDAs and recommended that the three-month time limit on discrimination claims be doubled. Over 90 people wrote to the committee giving evidence of their experiences. Some of them highlighted the positive aspects of NDAs, arguing that they lead to higher pay-outs and avoid the emotional impact of going to a tribunal.  More from the BBC here.

In the Courts:

• Lachaux v Independent Print Ltd & Anor: In this landmark judgement, the Supreme Court ruled on the meaning of s.1(1) Defamation Act 2013. s.1(1) provides “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” (my emphasis). The Court ruled that (i) the Act raised the test of harm, and (ii) that the level of harm must be determined by its real-world impact (not merely by the inherent meaning of the potentially defamatory words themselves). The Court reached this conclusion on the basis of four arguments. First, the Act’s preamble indicates it was intended to amend the common law. This change was creating a new threshold of serious harm. Second, the phrase “has caused” points to a historic harm which applicants must show has actually occurred. Given this context, Parliament must have assumed that “likely” harm could also be established as a question of fact. Thirdly, s.1(2) imposes a factual test, suggesting s.1(1) imposes a similar requirement. Finally, if serious harm could be demonstrated merely by referring to the inherent meaning of the words, it would be difficult to see that any substantial change to defamation law had been achieved. Appeal dismissed.
• B v A Local Authority: B appealed a declaration made by Cobb J about her capacity to use social media and to consent to sexual relations (originally covered by this blog here). The Court of Appeal rejected her appeal. It ruled Cobb J had not taken into account irrelevant matters merely because he had quoted a superfluous part of a judgement. The court also rejected B’s assertion that Cobb J should not have considered whether B could understand the health risks associated with unprotected sexual intercourse. Section 3(4) of the Mental Capacity Act 2005 states that information which is relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another. However, the Court of Appeal upheld the Local Authority’s cross-appeal. It ruled B’s limited understanding of her care needs could not properly form the basis for Cobb J’s conclusion that she had the capacity to make decisions about her residency.
• ZK, R (On the Application Of) v London Borough of Redbridge: The claimant challenged Redbridge Borough Council’s method of providing specialist teaching assistants. She argued that outsourcing the supply of such teachers was Wednesbury unreasonable and meant Redbridge was failing to comply with its statutory obligations. The High Court rejected these arguments. It held Redbridge had made sensible arrangements to deal with the transition from primary to secondary education, thereby ensuring the required staff would be in place. There was no evidence that the specialist teachers were being called upon to undertake other duties, or that employing them directly would avoid the inevitable difficulties created when a staff member became ill. Finally, the High Court rejected a claim of discrimination. Individual allegations that Redbridge had not fulfilled its obligations under several pupils’ Education Health and Care Plans (EHCP) did not necessarily mean that special needs children were being placed at a disadvantage generally.

On the UKHRB

• Michael Spencer explained the Supreme Court judgment in R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions.
• Clare Duffy analysed the decision in Lachaux in detail here.
• On LawPod, Jonathan Metzer and Dominic Ruck Keene revisited Chester v Afshar here and here.

Events:

• The Prosecution of International Crimes in the UK, 18^th June with HRLA. More information here.
• Article 1 of the First Protocol of the ECHR – an update 21 years on, 26^th June with ALBA. More information here.
• Foundational Concepts in Constitutional Theory, 10^th – 12 July with UCL Laws. More information here.
• Constitutional Law Summer School, Belfast 07-09 August 2019 with the Attorney General for Northern Ireland’s Office. 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