By: Guest Contributor
7 February 2012 by Guest Contributor
The media were successful in both the judgments handed down this morning by the Grand Chamber of the European Court of Human Rights. The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest. In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy.
The judgments demonstrate the need for a careful balancing exercise in privacy cases. Both cases involved “popular journalism” and show that, even in this area, privacy is not a “trump card”. The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.
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3 February 2012 by Guest Contributor
Růžový Panter, OS v. Czech Republic (App No 20240/08) – read judgment (only available in French)
The European Court of Human Rights (Fifth Section) decided yesterday that there was no violation of Article 10 as a result of a defamation judgment against a Czech anti-corruption NGO, “Pink Panther”. The case arose out of a press release concerning a widely publicised case concerning tax evasion in relation to light heating oils (called “LTO”). The press release asked a number of questions in relation to the case. the
Background
The press release published by the applicant was addressed to IL, the then Vice-President of the Chamber of Deputies, (later Interior Minister) and invited him to clarify his relationship with certain persons, including TP. The relevant part read as follows [6]:
About five years ago IL took part in an expedition to Kilimanjaro where he met, according to him by coincidence, VK who sold light heating oils and who had just been sentenced for preparing a murder.
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1 February 2012 by Guest Contributor
Coogan and Philips v News Group Newspapers [2012] EWCA Civ 48 –read judgment
The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation. The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).
Background
Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”. Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters. He refused, invoking PSI.
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31 January 2012 by Guest Contributor
The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012. The cases were both heard more than 15 months ago, on 13 October 2010.
We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private. The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos. The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.
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27 January 2012 by Guest Contributor
Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.
Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.
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24 January 2012 by Guest Contributor
Andrew Tickell in his recent post (Is the European Court of Human Rights obsessively interventionist?) makes a number of important points about the European Court of Human Rights’ approach to admissibility, in particular the application of the manifestly ill-founded criterion. Perhaps understandably, the majority of legal scholars have preferred to focus on the more substantive aspects of the Court’s work and its leading judgments.
However, Tickell’s analysis, and his other efforts to ensure that the less glamorous work of the Court on admissibility are not overlooked, must be welcomed, both as redressing that balance and informing the wider debate on the proper role of the Court. This post seeks to build on his contribution by providing an overview of the Court’s approach to admissibility in applications brought against the United Kingdom.
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22 January 2012 by Guest Contributor
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson [2012] EWHC 57 – Read judgment
On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry. The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.
Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.
19 January 2012 by Guest Contributor
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09 [2012] ECHR 56 – Read judgment – updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110).
The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.
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9 January 2012 by Guest Contributor
On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.
Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.
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1 January 2012 by Guest Contributor
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
Adam Wagner represented Mr Okpor in this case. He is not the author of this post.
This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.
Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.
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28 December 2011 by Guest Contributor
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.
The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.
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21 December 2011 by Guest Contributor
Freezing
One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print.
It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made the Anderson’s previous two efforts essential reading.
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15 December 2011 by Guest Contributor
Lord Irvine tonight weighed in to the debate about Britain’s relationship with the European Court of Human Rights – and effectively accused the Supreme Court of having surrendered its intellectual independence, and shirked its judicial responsibility.
His at times toughly-worded lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law chimes with what the Attorney General Dominic Grieve has been saying recently about the need for primary responsibility for human rights protection to lie with states, not Strasbourg – and Grieve will surely approve of both the content and timing of Lord Irvine’s intervention, on the eve of the European Court’s ruling in Al-Khawaja and Tahery v. UK and in the context of Britain’s chairmanship of the Council of Europe. I’ll link to the text of his speech when it’s available.
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12 December 2011 by Guest Contributor
The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence. On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK’s relationship with the Strasbourg court.
On the face of it, the issue looks simple enough. One clue to its importance, though, is that we have had to wait more than 18 months for the court’s final appeal chamber to come up with a ruling. Perhaps the judges have found it a difficult decision to reach.
Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness’s evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention.
What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them.
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10 November 2011 by Guest Contributor
There is a commission on a bill of rights for the UK. It is in the midst of a consultation process, and visited Belfast this week. Have you noticed?
The commission’s establishment and composition provoked adverse comment. The mood of open hostility to existing human rights law merged with the potential for engineered political standoff, as the commission members are split between those who support the Human Rights Act and those who oppose it. A commission born from political compromise looks primed for stalemate. Not the best way to initiate a new constitutional conversation.
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