Category: BLOG POSTS
19 April 2016 by David Hart KC
PJS v. News Group Newspapers Ltd![]()
[2016] EWCA Civ 393 – read judgment
Matthew Flinn posted here recently on an earlier decision in this case, PJS (22 January 2016), in which the Court of Appeal granted an interim injunction banning revelation of PJS’s extra-marital ventures.
Yesterday’s judgment sets that injunction aside, solely on the basis that those escapades had now been so widely reported on the internet and in a US publication that it was less likely that PJS would get an injunction at any future trial of the claim.
This decision was reported in a somewhat partial way in today’s Times – “the death knell for celebrity privacy injunctions”. Things are not quite as simple as that. The injunction was only discharged because of the wide publication ground which the story had now received, not on the underlying merits of the privacy claims. But then The Times (proprietor NGN) was not necessarily going to give us a fully objective account of a case in which the Sun on Sunday (proprietor NGN) had secured this win.
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19 April 2016 by Emma-Louise Fenelon
Photo credit: Guardian
“ After this there is no turning back. You take the blue pill: the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill: you stay in Wonderland and I show you how deep the rabbit hole goes.”
– Morpheus, The Matrix
The explosion of genetic testing in the last half century has produced unquantifiable benefits, allowing scientists to understand the constitution of genetic disorders and dramatically improve disease diagnosis, avoidance and treatment. Consider the near-eradication of Tay-Sachs, a fatal neurodegenerative disease, since the introduction of screening in the 1970s; the standardisation of newborn testing; and the introduction of BRCA1 and BRCA2 testing for inherited cancer genes.
These advances have created challenging ethical and legal questions, however: How much information does each of us want to know about our genetic makeup?; Do we have a responsibility to seek such information out? What should we do with the information once we get it? What about the significant risks of stigmatisation and discrimination?; And, where do doctors’ duties begin and end insofar as they are, or ought to be aware of testing outcomes?
In the High Court last week (judgment available here) McKenna J dealt with the latter question, striking out a claim by a patient’s relatives over a missed diagnosis of a genetic disorder and holding that a third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another.
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18 April 2016 by Charlotte Bellamy
In the News
Last week marked the beginning of the ten-week run-in to the EU referendum. With it came the Government’s obligation to publish a statutory report informing the electorate of precisely what rights and obligations arise for the UK as a result of EU membership – and this report appeared on Thursday.
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11 April 2016 by Jeremy Hyam QC
Photo credit: Guardian
Jeremy Hyam QC
Michalak v The General Medical Council & Ors [2016] EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.
Dr Eva Michalak’s name may sound familiar. She formerly worked as a consultant physician with an interest in kidney diseases at Pontefract General Infirmary. In 2011, in a widely publicised judgment she recovered record damages in respect of claims for sex and race discrimination and unfair dismissal against the Mid Yorkshire Hospitals NHS trust and three senior staff members. The tribunal panel said that they were “positively outraged at the way this employer has behaved” and concluded the Polish-born doctor would never be able to carry out her work again.
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8 April 2016 by Matthew Flinn
PJS v NEWS GROUP NEWSPAPERS LIMITED [2016] EWCA Civ 100
In an anonymised judgment dated 22nd January – but only recently published – the Court of Appeal underscored the importance of the right to privacy in the context of sexual activity.
In the modern digital age – an age when society is grappling with “sexting” and “revenge porn”, and one’s follies may be photographed and uploaded to Facebook for friends and family (and others) to see for years to come – the nature and scope of privacy, and the public’s expectations in relation to it, are being consistently challenged and redefined. This case may therefore be seen as a welcome re-affirmation of the basic point that, at least in normal circumstances, one’s sex-life is inherently private, and not a topic for public consumption.
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6 April 2016 by Rosalind English
Economic Freedom Fighters v Speaker of the National Assembly, President Jacob Zuma and Public Protector Case CCT 143/15; Democratic Alliance v Speaker of the National Assembly, President Jacob Zuma, Minister of Police, Public Protector with Corruption Watch as Amicus Curiae – Case CCT 171/15 (31 March 2016) – read judgment
The Constitutional Court of South Africa last week handed down a damning judgement against the ruling head of the African National Party (the ANC). Despite this judgment, parliament voted not to impeach him. The ANC defeated the opposition-sponsored motion, saying Mr Zuma was not guilty of “serious misconduct”.
See University of Cape Town law professor Richard Calland’s article on the consequences of this ruling for President Zuma.
Background to the Constitutional Court proceedings
The Public Protector is an institution set up under the South African Constitution to ensure good governance and “strengthen constitutional democracy in the Republic”. She investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at President Zuma’s Nkandla private residence, and she concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him and his family. Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.
For well over a year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Therefore the EFF and the DA took these applications agains the National Assembly and the President, arguing that the President should be ordered to comply with the remedial action.
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5 April 2016 by Adam Wagner
The deadline has now passed. Thank you to all of those who applied. We will be in touch.
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4 April 2016 by Fraser Simpson
Photo credit: The Guardian
Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 – read judgment.
The European Court of Human Rights (“ECtHR”) has held that the use of telephone recordings as evidence in a criminal trial, despite the inability of the accused to challenge the caller, did not violate his rights under Article 6, ECHR. This judgment follows a number of Grand Chamber judgments on similar issues that have altered the ECtHR’s stance on the subject of absent witness evidence.
by Fraser Simpson
Background
The applicant, Mr Seton, was on trial for murder. Prior to the trial, he submitted a defence statement stating that he believed that the murder had been carried out by Mr Pearman. The applicant alleged that he had previously been involved in a drug deal with Mr Pearman and the victim.
Mr Pearman, who was at the time imprisoned for drug dealing, was interviewed by the police but he refused to cooperate and answered “no comment” to all questions. Following these interviews, Mr Pearman phoned his wife and son from the prison and stated that he had never heard of the applicant and had no knowledge of the murder. These calls were recorded – a standard practice that Mr Pearman would have been aware of.
During the applicant’s trial for murder, it was accepted that the primary issue to be determined by the jury was whether the applicant or Mr Pearman had committed the murder. Mr Pearman had refused to attend the trial or make a formal witness statement. Accordingly, the prosecution sought to rely upon these recordings to disprove the applicant’s version of events. The trial judge, in deciding whether the recordings could be admitted as evidence, referred to s.114, Criminal Justice Act 2003 (“CJA 2003″). After considering the relevant considerations – such as the probative value of the evidence, whether it was self-serving, the reliability of the recording, and the prejudice that the applicant would face if it were to be admitted – the judge decided that the recordings could be relied upon during the trial. In summing up, the trial judge outlined the limitations of the telephone recordings and stated that it was up to the jury, in light of these limitations, to decide the relevant weight to be attached to the recordings. The applicant was subsequently convicted by the jury and sentenced to life imprisonment.
The applicant unsuccessfully appealed his conviction to the Court of Appeal (see, Seton v. R., [2010] EWCA Crim 450). The Court of Appeal considered that compelling Mr Pearman to attend the trial, which was an option, would have “been a fruitless exercise”. Mr Pearman could have invoked the protection against self-incrimination and had consistently refused to cooperate so the “prospect of any sensible evidence being given by him was, on a realistic view, nil” (paragraph 22 of Court of Appeal judgment). The Court of Appeal would only interfere with the trial judge’s decision if the decision was “marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made”. The Court of Appeal held that the relevant consideration under s.114(2), CJA 2003 had been covered by the trial judge and there were no other grounds to overturn the conviction.
Further, the Court of Appeal commented on the safety of the conviction. Due to the “overwhelming” evidence against the applicant, including eye-witness accounts, telephone call records between the applicant and the victim and cell site location evidence placing the applicant in the vicinity of the murder, the conviction was deemed to be safe.
The Strasbourg Court
The applicant applied to the European Court of Human Rights and alleged that his right to a fair trial within Article 6(1) and 6(3)(d) had been violated. Article 6(1) includes the right to a fair hearing when facing criminal charges whilst Article 6(3)(d) ensures that the individual has the right:
“to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”
The default position is that witness evidence should be provided during the trial and the accused should have the opportunity to challenge this evidence during this trial. However, the use of witness evidence when the witness does not attend the trial does not automatically result in a violation of Article 6(1) and 6(3)(d). The Grand Chamber has previously set out specific guidance in assessing whether the use of such evidence complies with Article 6. In Al-Khawaja and Tahery v. the United Kingdom (GC), Application nos. 26766/05 and 22228/06, 15 December 2011 (see paragraphs 118-151), the Grand Chamber outlined a general three-part process:
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Consider whether good reasons exist for the absence of the witness.
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Consider whether the evidence was the “sole or decisive” decisive evidence against the accused.
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Assess the existence of sufficient counterbalancing factors and procedural safeguards which allow the reliability of the evidence to be fairly and properly tested.
This process was clarified in Schatschaschwili v. Germany (GC), Application no. 9154/10, 15 December 2015. The Grand Chamber stated that the lack of good reasons for lack of attendance was not sufficient to result in a violation of Article 6, but it was a strong factor to be considered when assessing the overall fairness of the proceedings (paragraph 113). Additionally, the necessary extent of counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (paragraph 116).
- Were there good reasons for the non-attendance of Mr Pearman? (paragraphs 61-62)
The ECtHR has previously adopted a robust approach to assessing whether “good reasons” existed for the absence of the witness at the trial. Previously, even in situations where the witness was located in another country (Gabrielyan v. Armenia, Application no. 8088/05, 10 April 2012), or could not be located at all (Lučić v. Croatia, Application no. 5699/11, 27 February 2014), the ECtHR have held that the authorities have failed to satisfy their duty to secure attendance of the witness. In light of this, the ECtHR unsurprisingly concluded that no good reasons existed for Mr Pearman being absent from the trial. The trial court could have compelled Mr Pearman to attend the trial and whilst they could not compel him to give evidence, due to his right to silence, the jury would have at least been able to assess his demeanour when facing cross-examination.
- Was the evidence of Mr Pearman the “sole or decisive” evidence? (Paragraphs 63-64)
The ECtHR considered that the recorded telephone calls could not be considered the “sole or decisive” evidence in the criminal trial. The Court of Appeal, in commenting on the safeness of the conviction, had listed the other “overwhelming” evidence against the applicant. However, the evidence had been described as “important” by the trial judge. Accordingly, following the Grand Chamber decision in Schatschaschwili, it was necessary to consider whether sufficient counterbalancing factors existed during the trial.
- Did sufficient counterbalancing factors exist? (Paragraphs 65-68)
In the present case, the ECtHR highlighted the detailed legislative scheme intended to ensure that evidence from the absent witness could only be relied upon in limited circumstances. The need to assess the significance of the evidence, its reliability, and the prejudice that the applicant would face as a result of being unable to challenge the witness was an important procedural safeguard intended to uphold respect for the applicant’s rights. Additionally, the instruction of the judge as to the limitations of the evidence was another important counterbalancing factor.
As clarified by the Grand Chamber in Schatschaschwili, the assessment of counterbalancing factors is a relative one – fewer factors will be required if the evidence provided by the absent witness is not especially important. In light of the existence of separate “overwhelming” evidence against the accused, the counterbalancing factors in the present case were considered sufficient.
In conclusion, the ECtHR decided that the criminal proceedings as a whole had been fair. Having following the procedure outlined in Al-Khawaja, the ECtHR concluded that there had been no violation of Article 6.
Comment
This decision of the ECtHR is the consequence of previous Grand Chamber decisions tending to dilute the procedural protections contained within Article 6(3). The right to examine witnesses has slowly been weakened in favour of a more holistic approach that focusses upon the overall fairness of the proceedings instead of potential individual deficiencies.
When considering the three part test in Al-Khawaja, the first step – whether good reasons existed for the non-attendance of the witness – was previously considered determinative. If no good reasons existed, then Article 6 had been violated. Such a stance has even been adopted by the ECtHR following the judgment in Al-Khawaja and only months before the decision in Schatschaschwili (see Karpyuk and Others v. Ukraine, Application nos. 30582/04 and 32152/04, 6 October 2015, paragraph 123). Additionally, if such good reasons did exist but the evidence was the “sole or decisive” evidence in the case, then Article 6 had also been violated (Saïdi v. France, Application no. 14647/89, 20 September 1993, paragraph 44). Now, the position is that these considerations are merely factors that can be balanced away.
But the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to the Court of Appeal’s consideration of the safety of the conviction.
It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.
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1 April 2016 by Jim Duffy
This week, the mosaic shrine adorning the wall outside Stockwell underground station once again became the focal point for difficult questions surrounding the police response the terrorist attacks of 2005.
The judgment of a Grand Chamber of the European Court of Human Rights in Da Silva v the United Kingdom draws a line under a long legal battle mounted by the family of Jean Charles de Menezes, the young Brazilian electrician shot dead by the Metropolitan Police on 22 July 2005 having been mistaken for a suicide bomber.
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1 April 2016 by Rosalind English
The leader of South Africa’s main opposition party, the Democratic Alliance, has called for President Zuma to be impeached following the Constitutional Court’s finding that he had flouted the Constitution by failing to “uphold, defend and respect the Constitution.”
The case was brought by the Democratic Alliance, amongst others, seeking validity for the Public Protector’s remedial action against the President. Public Protector Thuli Madonsela had reported that Zuma should reimburse the country the money he has spent on upgrades to his palatial homestead. As a course of this remedial action, she recommended that he pay back a portion of the funds used for the upgrades. But this report was set aside by the National Assembly after Zuma made submissions on why he should not pay back the funds.
Chief Justice Mogoeng Mogoeng, giving judgment for the Court, said that the remedial action had a binding effect.
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30 March 2016 by Fraser Simpson
Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.
The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).
by Fraser Simpson
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30 March 2016 by Charlotte Bellamy
In the news
Radovan Karadžić, the former Bosnian Serb leader, has been sentenced to 40 years in jail for genocide and war crimes committed during the 1992-95 Balkans war, including the massacre of more than 8,000 Bosnian men and boys at Srebrenica and the siege of Sarajevo, during which 13,952 people were killed. Despite the 70-year-old former leader’s insistence that his actions were aimed at protecting Serbs during the conflict, he was found guilty of 10 out of the 11 charges he faced, in a verdict delivered 18 months after the end of his five-year trial.
Karadžić had been indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) which was established by the UN in 1993. He was on the run for the next 13 years, during which time he assumed the identity of ‘Dr Dragon Dabic’, a bearded health guru who lived openly in the Serbian capital. He was finally arrested in 2008 and handed over to the Hague by the Serbian government.
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24 March 2016 by Guest Contributor
“Roses are red.
Violets are blue.
Whatever your political colour;
Human rights should matter to you”
Some legal oratory flows into the profound, beautiful and inspiring. Most of the time when it comes to poetry – as this particularly appalling ditty is designed to demonstrate – we lawyers should stick to the day job.*
This week human rights commentators celebrated both World Poetry Day and the launch of a new project on the conservative commitment to human rights. Announcing a Commission made up of MPs and commentators – including Maria Miller MP, Dominic Grieve QC MP and Matthew D’Ancona – Bright Blue this week published a series of essays by Conservative leaders on a range of human rights threats; from the refugee crisis to the repeal of the Human Rights Act.
Bright Blue now joins the Labour Campaign for Human Rights in taking steps to take the current debate beyond the heat and light of party politics and into a greater conversation about how we protect the rights of the most vulnerable in our communities and about the UK’s place in the world.
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22 March 2016 by Hannah Lynes
Brought to you by Hannah Lynes
In the news
According to research released by the Home Office, large increases in stop and search operations have no discernible effect on crime reduction. The official study examined crime rates across 10 London boroughs in the first year of Operation Blunt 2, which led to a surge in the number of searches from 34,154 in the year before to 123,335 in 2008/2009.
The findings are likely to lend support to the position of the Home Secretary, Theresa May who in 2014 introduced new measures to curtail reliance on the powers. She has previously been critical of claims by the Metropolitan Police that a rise in knife crime in recent months is linked to a drop in the use of stop and search, warning against a “knee-jerk reaction.”
Police powers to conduct the searches have proved highly controversial, with campaigners arguing that ethnic minority groups are disproportionately targeted. An analysis by the Independent found that between December 2014 and April 2015, black people were more likely to be stopped than white people in 36 out of 39 police forces.
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16 March 2016 by acwessely
Photo credit: Guardian
This week’s round up comes from Alex Wessely.
In the news
A highly experienced magistrate – Richard Page – has been sacked for airing views opposing same-sex couples being allowed to adopt. In a statement the Judicial Conduct Investigations Office said his views – which he had expressed in an BBC interview in 2015 – constituted “serious misconduct which brought the magistracy into disrepute”. Alice Arnold in the Guardian agrees with the decision to sack him (“the law is clear… magistrates must respect it”), whereas the Christian Legal Centre say this represents a “new political orthodoxy” and “modern day madness”. In a subsequent development, Mr Page is now planning to sue Michael Gove, citing religious discrimination.
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