By: Rosalind English

Anti-fracking protesters’ Convention rights against private landowners

18 March 2014 by Rosalind English

Manchester Ship Canal Developments v Persons Unknown [2014] EWHC  645  (Ch) – read judgment

The High Court has ruled that Convention rights may be engaged in disputes between private landowners and trespassers, thereby making it incumbent on the court under Section 6 of the Human Rights Act to balance the trespassers’ rights under Article 8 against the landowner’s rights under Article 1 Protocol 1. 

The claimants, who owned land adjacent to a single track road surrounded by farmland, sought a possession order against the defendant activists who had set up camp close to the road in protest at the drilling program being undertaken by a company to whom the claimants had granted a licence. The protest, which obstructed the road on a number of occasions, was intended to deter the controversial fracking process which the activists feared would ensue.
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Police bid to obtain journalistic material refused – Supreme Court

13 March 2014 by Rosalind English

R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant) [2014] UKSC 17 – read judgment

This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence.  The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):

Factual background

Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time. 
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Police have “Osman” duty to investigate in date rape cases

7 March 2014 by Rosalind English

DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) – read judgment

The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.

The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1 AC 225.

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Cap on housing benefit is lawful, says Court of Appeal

26 February 2014 by Rosalind English

SG and others, R (on the application of) v Secretary of State for Work and Pensions, 21 February 2014  [2014] EWCA Civ 156 – read judgment

The Court of Appeal has rejected on all grounds a claim that the cap on housing benefit amounted to unlawful discrimination against women.

The appellants were single mothers who claimed that the regulations capping housing benefit discriminated against women generally, and particularly those who were victims of domestic violence. The Divisional Court had dismissed their application for an annulment of the Benefit Cap (Housing Benefit) Regulations 2012 on the basis that the regulations were in breach of Article 14 of the ECHR read with Article 8, and the same Article read with the right to peaceful enjoyment of possessions under Article 1 Protocol 1. The court below had also rejected their submission that the regulations infringed the UN Convention on the Rights of the Child, or that they were unlawful on grounds of irrationality. In essence, the Divisional Court upheld the Secretary of State’s arguments that the aim of the benefit cap was primarily to bring about a change in culture by giving people some incentive to work, thereby reducing what the Government believes is the debilitating effect of long term dependency on benefits. It also accepted the government’s contention that the cap struck a fairer balance between the interests of taxpaying working households and those on benefits. Any interference with family life and any discriminatory impact of the benefit cap on women generally (and female victims of domestic violence who flee from their homes in particular) was therefore said to be justified and lawful.

The appellants’ appeal against that ruling was dismissed.
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David Miranda challenge dismissed in High Court

19 February 2014 by Rosalind English

David Miranda v Secretary of State for the Home Department, the Commissioner of Police for the Metropolis and three interveners [2014] EWHC 255 (Admin) – read judgment

The High Court has rejected all the arguments supporting David Miranda’s application for judicial review of his detention at Heathrow Airport in August last year. In a highly readable and pungent judgment, Laws LJ has some robust things to say about the vaunting of journalistic interests over public security in the guise of Article 10, and the ‘mission creep’ of requirements demanded by the courts for state action to be considered “proportionate”.

This is the long-awaited conclusion to the substantive hearing since judicial review proceedings were initiated seven months ago; see our posts on previous stages of this saga here, here and here.  It will be remembered that Mr Miranda was detained and questioned by police officers under the Terrorism Act 2000,  and various items in his possession, notably encrypted storage devices, were taken from him. Miranda claims that all this was done without any legal authority.

The claim, which was supported by numerous civil liberties interveners, raised three questions:

1. Did paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 empower the police to stop and question  the claimant for the purpose of determining whether he appeared to be “concerned in the commission, preparation or instigation of acts of terrorism”?
2. Even if it did, was the use of the power proportionate to the legitimate aim?
3. Is the paragraph 2(1) power repugnant to the right of freedom of expression guaranteed by Article 10 of the ECHR?

Laws LJ, giving judgment for the three judge panel, answered the first two in the affirmative, and said a firm “no” to last.

Factual background

The claimant is a Brazilian citizen and the spouse of Glenn Greenwald, a journalist who at the material time was working for the Guardian newspaper. Some months after an initial contact made in late 2012 Mr Greenwald met Edward Snowden, who provided him with encrypted data which had been stolen from the National Security Agency  of the United States. The data included UK intelligence material. Some of it formed the basis of articles in the Guardian on 6 and 7 June 2013 and on later dates. On 12 August 2013 the claimant travelled from Rio de Janeiro to Berlin in order to meet the other journalist involved, Laura Poitras. He was carrying encrypted material derived from the data obtained by Mr Snowden and he was travelling to collect computer drives containing further such material to assist in the journalistic activity of Mr Greenwald. He was stopped at 0805 on Sunday 18 August 2013 at Heathrow on his way back to Rio de Janeiro.

A series of Port Circulation Sheets (PCS) were circulated to counter-terrorism police alerting them that the claimant was  “likely to be involved in espionage activity which has the potential to act against the interests of UK national security”, and requesting them to establish the nature of his activity, assess the risk that he posed to UK national security and to mitigate as appropriate.  A PCS essentially triggers the powers of the police under certain circumstances to carry out a ports stop against a named individual.

The claimant was detained for approximately 9 hours.  According to a statement from the Intelligence, Security and Resilience in the Cabinet Office, the encrypted data contained in the external hard drive taken from the claimant contained approximately 58,000 highly classified UK intelligence documents. Many were classified SECRET or TOP SECRET.

Judicial review proceedings started shortly afterwards, and in November 2013, after various interlocutory hearings, the substantive hearing came before the High Court.

The Court’s Decision: Improper purpose

The Schedule 7 purpose – determining whether [the subject] appears to be a person who “has been concerned in the commission, preparation or instigation of acts of terrorism” – must be the purpose for which the officers execute the stop if it is to be lawful. It doesn’t make the stop unlawful if there is a subsidiary purpose – “killing two birds with one stone” – but the permitted purpose must be the “true and dominant purpose behind the act” (R v Southwark Crown Court ex p. Bowles [1998] AC 641, [1998] UKHL 16].

The fact that the police officers in question had not been given sufficient information about the intelligence did not mean that they had not executed their instructions in good faith:

Given the context – the possible apprehension of terrorism – Parliament must have enacted Schedule 7 in the knowledge that there might be very good reasons why the examining officers … should not be privy to the whole story. (para 21)

The purpose of the stop thus disclosed was to “ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination”. Moreover, the proper exercise of the Schedule 7 power did not require that the examining officer have any grounds whatever for suspecting that a person was connected with terrorism within Act’s definition. The Schedule 7 purpose was not to determine whether the subject is, but only whether he “appears to be” a terrorist.  The Schedule 7 power was created by Parliament in order to provide “a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2)”.

Given the facts stated in the last PCS and the National Security Justification, Laws LJ for the Court concluded that the purpose of the stop – to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination – “fell properly within Schedule 7 of the 2000 Act on the latter’s true construction.”

Proportionality

The classic three step proportionality test – was the objective important enough to justify limiting a right, was the measure connected to that objective, and was the measure no more intrusive than other necessary – has been elaborated over the past decade, most recently by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) 3 WLR 170, [2013] UKSC 39. This adds a fourth question, which is to ask whether,  even if the measure in question is not particularly intrusive, did it nevertheless fail to strike a fair balance has been struck between the rights of the individual and the interests of the community? Laws LJ pondered on the implications of such a requirement, and found it not to his liking:

It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.

Free Speech and the Protection of Journalistic Expression

Laws LJ commenced his consideration of this element of the claim with a brisk dismissal of all the Strasbourg case law on the matter. The idea of free speech has received sufficient emphasis in the law of England –

I do not therefore think it necessary, on this part of the case, to place any reliance on the jurisprudence of the European Court of Human Rights; the common law is a sufficient arena for the debate.

In any event, much of the law on free speech in journalism was of no relevance here since it concerned protection of sources. No such issue arose here. The source was no secret: “Mr Snowden stole the material, and the claimant (however indirectly) got it from Mr Snowden.” (para 48).

Furthermore, the mistaken idea seems to have taken hold that the essential justification of free expression as a fundamental value is the promotion or betterment of democratic government. Freedom of speech may indeed be “the lifeblood of democracy”; but that is not the same thing.

The perception of free expression as a servant of democracy, however, would tend to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government … This would fuel what is anyway one of exuberant democracy’s weaknesses, namely the intolerance of minorities. Everyone, even democracy’s enemy, must surely be allowed his say provided he advocates no crime nor violates the rights of others. The reason is that free thought, which is a condition of every man’s flourishing, needs free expression; and this is every person’s birthright, in whatever polity he has to live. There are of course undemocratic societies in which free speech is an idle hope. But free speech is not a creature of democracy; if anything, the converse. The critics of democracy may keep democracy on its toes. (para 45)

Turning to the matter in hand, Laws LJ observed that this privileging of political speech over other forms of expression has a distorting effect on the proportionality debate. The claimant, in other words, was seeking a heightened protection for himself, or at least the material he was carrying) on account of his association with the journalist Mr Greenwald. There was no basis for the court to extend such protection:

the application of requirement (iv) in the toll of proportionality – “whether… a fair balance has been struck between the rights of the individual and the interests of the community” – needs at least to be modified. The contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

The sting of the claimant’s challenge was that the defendants did not believe that the claimant’s possession of the material presented any real danger to national security or risk of loss of life. Whilst acknowledging the limits of evidence not cross-examined, Laws LJ could find “no perceptible foundation” for such a suggestion. The truth of  it was that the claimant’s broader argument on proportionality – that the use of Schedule 7 was in any event unjustified – did not in fact depend on the categorisation of the GCHQ documents as journalistic material. The claimant was trying to make out a case that he had been assisting in the conduct of responsible journalism, and the law’s duty to protect that activity meant that interference with it by the summary and unsupervised process of Schedule 7 was disproportionate and unlawful whether or not any intercepted documents strictly fell within the statutory definition of “journalistic material”:

… given the substantial, often insuperable, difficulty a journalist faces in seeking to determine what classified material may be safely published and what may not (paragraph 58 above), the notion of “responsible journalism” throws little light on the proportionality issue.

The claimant’s essential argument rested on three propositions:

1. Journalists, “like judges”, have a role in a democratic State to scrutinise action by government.
2. The function of the free press is inhibited by an insistence that anything (in the security field) which the journalist seeks to publish must be stifled because it may be part of the “jigsaw” from which a knowing terrorist may draw harmful inferences.
3. There is a balance to be struck, again in the security field, between the responsibility of government and the responsibility of journalists.

But nobody had satisfied the court that there was any constitutional basis for any of these propositions, which would confer on the journalists’ profession a constitutional status which it does not possess:

They suggest … that journalists share with government the responsibility of measuring what is required by way of withholding publication for the protection of national security. Journalists have no such constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government: see, amongst much other authority, Binyam Mohamed[2011] QB 218per Lord Neuberger MR at paragraph 131.

He concluded, therefore, that the Schedule 7 stop was a proportionate measure in the circumstances. Its objective was not only legitimate, but “very pressing”.

In a press freedom case, the fourth requirement in the catalogue of proportionality involves as I have said the striking of a balance between two aspects of the public interest: press freedom itself on one hand, and on the other whatever is sought to justify the interference: here national security. On the facts of this case, the balance is plainly in favour of the latter. (para 73)

For similar reasons the Court rejected the claimant’s and intervenors’ related submission, that the Schedule 7 power is over-broad or arbitrary, and for that reason not “prescribed by law” under Article 10(2).

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Related posts

• David Miranda Special Edition – The Human Rights Roundup
• David Miranda – Remember his name.
• More developments under Schedule 7
• Miranda case shows we need more secrecy laws … or does it?

Strasbourg law does not prevent the imposition of whole life orders for “heinous” crimes

18 February 2014 by Rosalind English

McLoughlin, R v [2014] EWCA Crim 188 (18 February 2014) – read judgment

The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.

On the facts of two individual cases, the Court increased the sentence of Ian McLaughlin to one of a whole life term for the murder of Graham Buck. The Court dismissed an appeal by Lee Newell against his whole life order for the murder of Subhan Anwar.

The following is based on the Court of Appeal’s press summary.
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High Court quashes government’s refusal to proceed with Litvinenko inquiry

12 February 2014 by Rosalind English

Litvinenko, R (On the application of) v Secretary of State for the Home Department [2014] EWHC 194 (Admin)- read judgement

Neil Garnham QC and Neil Sheldon of 1 Crown Office Row represented the Secretary of State in these proceedings. They had nothing to do with the writing of this post. 

This was an application by the widow of Alexander Litvinenko for judicial review of the refusal by the Secretary of State for the Home Department to order the setting up of a statutory inquiry into his death in London in November 2006. The Secretary of State had been asked to set up such an inquiry by Sir Robert Owen, the judge appointed to conduct the inquest into Mr Litvinenko’s death as Assistant Coroner.

Factual and Legal Background

Mr Litvinenko was taken ill on 1 November 2006 and died in University College Hospital on 23 November. There appears to be no doubt that the cause of death was radiation poisoning as a result of the ingestion of a radioactive substance, polonium 210. An “extremely thorough” investigation into the death was carried out by the Metropolitan Police Service with the assistance of the Atomic Weapons Establishment, Public Health England, the Health and Safety Executive, the Forensic Science Service and other external experts. 
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Escaping dog not a “crime of violence” for purposes of criminal injuries compensation

5 February 2014 by Rosalind English

Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) [2014] EWCA Civ 65, 3 February 2014 – read judgment

When considering whether to award compensation under the Criminal Injuries Compensation Scheme, the board must rest its determination of “crime of violence” on the act causing the injury, not its consequences. A breach of the provisions of the Dangerous Dogs Act is not necessarily a “crime of violence”.

Background facts

In August 2002 a fourteen year old boy, TS, was riding his bicycle along the pavement of a quiet residential street near his home when a small dog, which had escaped from its owner’s garden, rushed up to him barking in an aggressive manner. TS instinctively swerved away from the dog on to the road and into the path of a car. He was seriously injured. He spent four months in hospital and is now quite severely disabled.
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Prisoner’s rights not breached by segregation

3 February 2014 by Rosalind English

Shahid v The Scottish Ministers [2014] ScotCS CSIH – 18 – read judgment

Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.

The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006.  Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages.
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Honeymoon murder suspect can be extradited to South Africa, says High Court

1 February 2014 by Rosalind English

Government of the Republic of South Africa v Dewani  [2014] EWHC 153 (Admin) 31 January 2014 – read judgment

Shrien Dewani, the British man facing charges of murdering his wife on honeymoon in South Africa, has lost his appeal to block extradition there (so far three men have been convicted in South Africa over Mrs Dewani’s death). The Court ruled that it would not be “unjust and oppressive” to extradite him, on condition that the South African government agreed to return him to the UK after one year if his depressive illness and mental health problems still prevented a trial from taking place.
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Council acted unlawfully in refusing tenancy

29 January 2014 by Rosalind English

Trafford v Blackpool Borough Council [2014] EWHC 85 – read judgment

The High Court has held that a local authority had abused its powers by refusing to offer a solicitor a new lease of the claimant’s office premises.

The claimant solicitor was aggrieved by the fact that the stated reason for the defendant’s refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.

HHJ Davies held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis. The Council’s refusal was both Wednesbury unreasonable and procedurally unfair.

Public versus private

The interesting question central to this case was whether or not a public body, acting under statutory powers in deciding whether or not to renew or terminate a contract, was acting under public law duties, and therefore amenable to judicial review, or whether  the relationship between the claimant and the defendant was one governed exclusively by private law, where judicial review has no part to play .
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Taj Mahal Hotel injury claim allowed to proceed in English courts

24 January 2014 by Rosalind English

Pike and Doyle v Indian Hotel Companies Ltd [2013] EWHC 4096 (QB) – read judgment

Philip Havers QC and Peter Skelton of 1 Crown Office Row represented the claimants in this case. They have nothing to do with the writing of this post.

This sad case arose out of the 2006 terrorist attack on the Taj Mahal Palace, Mumbai, India. The claimants, who had spent 15 days backpacking around Goa, decided to treat themselves to one night of luxury at the hotel before they were due to fly home from Mumbai. Shortly after the attack began the claimants hid in their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the first claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The second claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.
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Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

22 January 2014 by Rosalind English

Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.
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State immunity upheld against human rights challenges in Strasbourg

18 January 2014 by Rosalind English

Jones and Others v. the United Kingdom (application nos. 34356/06 and 40528/06) – read judgement

The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention.  The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law”  and that there had been no violation of  Article 6 (right of access to court).

The claimants argued that there there was emerging support for a special exception to this immunity in cases concerning civil claims for torture lodged against foreign State officials. But the Court took the view that the bulk of the authority was to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity.
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Rendition to Libya an “act of state” and therefore non-justiciable

14 January 2014 by Rosalind English

Belhaj and another v Straw and Others [2013] EWHC 4111 (QB) 20 December 2013 – read judgment

Peter Skelton of 1 Crown Office Row acted for the defendants in this case. He has nothing to do with the writing of this post.

The High Court has struck out claims against British establishment defendants for “unlawful rendition”.  The doctrine of immunity attaching to an act of state is  total bar to that such claims and is not limited by the gravity of the alleged violation of rights.

Factual background

The first claimant, an opponent of the Gaddafi regime, and his wife, the second claimant, had been apprehended in Bangkok in 2004 whilst trying to travel from Beijing to the UK to claim asylum. They were held in a detention centre in Kuala Lumpur for two weeks and whilst they were there the UK authorities, along with the US, the Malaysians and the Chinese, worked together to secure their extradition to Libya (this was a time when friendly relations were maintained between the UK and the Libyan government).   After another journey to Bangkok, where they were detained in a US “black site”, they were flown to Tripoli  and transported to Tajoura prison, a detention facility operated by the Libyan intelligence services. The second claimant was released later in 2004, but the first claimant was transferred to another prison and held until 2010.
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