Category: Article 10 | Freedom of Expression

Hate speech and the meaning of “unacceptable behaviour”

26 April 2012 by Matthew Flinn

Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – read judgment

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

Late last year I posted about the case of Mr Mahajna, a national of Israel (but of Palestinian origin), who appealed against a deportation order issued by the Home Secretary under section 3(5) of the Immigration Act 1971 on the basis that his presence in the United Kingdom was not conducive to public good. To recap:

1. The Government has a list of “Unacceptable Behaviours” which forms the basis of its policy on excluding non-nationals under that provision. This includes actions expressing views which are likely to foster hatred and lead to inter-community violence in the UK (this policy was recent the focus of judicial consideration in the Court of Appeal in the case of R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546).
2. The Home Secretary relied on five pieces of evidence which were said to fall within the scope of the list of unacceptable behaviours and justify her conclusion that Mr Mahajna’s presence was not conducive to the public good.
3. The First-Tier Tribunal (FTT) examined those pieces of evidence. It concluded that the Home Secretary was entitled to conclude that they constituted examples of unacceptable behaviour and fell within the scope of the exclusion policy.
4. Although the order to deport Mr Mahajna constituted an interference with his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) because he was unable to carry out a number of public speaking engagements in the UK, the views of the Home Secretary as to what was in the public interest were entitled to significant weight in assessing whether or not that interference was proportionate.
5. The FTT ultimately concluded that the interference was proportionate, and the deportation order was upheld.
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“Thinking the unthinkable”? Freedom of information and the NHS Risk Register – Robin Hopkins

16 April 2012 by Guest Contributor

Department of Health v IC, Healey and Cecil(EA/2011/0286 & EA/2011/0287) – Read Decision

In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case involving publication, under Freedom of Information Law, of the NHS Risk Register. Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of Freedom of Information Act 2000 (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.

Risk registers in general

The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.

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The rising cost of free speech: Reynolds, contempt and Twitter

12 April 2012 by Rachit Buch

Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ –  indicates the difficulty of the task for the legal system.

Flood v Times: how does this affect calls for libel reform?

On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.

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Security bodies, private emails: parallels between the UK and US – Robin Hopkins

12 April 2012 by Guest Contributor

Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.

APPGER and security bodies

First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.

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Common-law open justice lets in the light; Strasbourg not the key

10 April 2012 by David Hart KC

R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment

No, not a case about secret trials, but about the way in which newspapers can get hold of court papers in open oral hearings. And, as we shall see, it led to a ringing endorsement of the principle of open justice from the Court of Appeal, leading to production of the documents to the Guardian.

Bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. Some lack of clarity as to why the Serious Fraud Office was not prosecuting the defendants. All in all, a tasty morsel for the Guardian to get its teeth into. It was allowed into the hearing,  but then not allowed critical documents provided to the courts, including the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents put before the court.

Why not?

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BBC interview with terror suspect Barbar Ahmad

6 April 2012 by Adam Wagner

I highly recommend Dominic Casciani’s excellent BBC Newsnight piece on Barbar Ahmad, which is currently available on iPlayer (UK only).

Ahmad’s case cuts across a number of different rights controversies. The BBC challenged the Ministry of Justice’s initial refusal to allow an interview with the terrorist suspect, who is currently held at a maximum security jail, and won – see our post. Ahmad is also currently the longest serving prisoner who has not been charged with a criminal offence; he has been detained for nearly 8 years.

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The dangers of data snooping – Angela Patrick

6 April 2012 by Guest Contributor

Civil liberties and the coalition have been happily filling the political pages this week. The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings (expertly dissected by Rosalind English earlier in the week) vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security.

These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.

After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.

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Kettling: Can a public interest motive justify a deprivation of liberty or not? – Robert Wastell

2 April 2012 by Guest Contributor

Austin & Others v. The United Kingdom, [2012] ECHR 459, 15th March 2012 – read judgment

The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.

The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive. 
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The right to receive information; journalists and inquiries

21 March 2012 by David Hart KC

Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment

Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act  (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.

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Strasbourg rules on anti-gay speech for the first time

13 March 2012 by Karwan Eskerie

Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment

 “Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”

A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:

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Justice wide shut

1 March 2012 by Adam Wagner

Yesterday I spoke at Justice Wide Open, an excellent conference organised by Judith Townend. I mounted my usual open justice hobby horses (to coin a topical phrase) on how to make the justice system more accessible to the public, including a moan about human rights reporting. Someone told me during the break that according to her research, when newspapers put a positive slant on a human rights story, they tend to use the code word “civil liberties”. And, as if to prove the point, on the very same morning the Daily Mail put its considerable weight behind a crucial but until now sub-public-radar “civil liberties” and open justice issue, the Justice and Security Green Paper.

As readers of this blog will be aware, the Government proposes in the Green Paper to introduce “closed material procedures” into civil proceedings. For an explanation of why this amounts to “a departure from the foundational principle of natural justice“, look no further than the Special Advocates’ response to the consultation and my co-editor Angus McCullough QC’s post, A Special Advocate’s comment. But although the proposals have been getting lawyers and The Guardian hot and bothered, the sound of tumbleweed has been the loudest response. Until now, that is.

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My witness statement to the Leveson Inquiry – Part 2/2

1 March 2012 by Adam Wagner

Not me giving evidence to the Leveson Inquiry

Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. You can download the entire statement here, The questions in bold are those asked by the Inquiry in their request – read part 1 here.

On similar topics, I also recommend the statements of Francis FitzGibbon QC and David Allen Green.

(10) Does/Can blogging act as a check on bad journalism?

Yes. The primary reason UKHRB was set up was to act as a corrective to bad journalism about human rights, and in under two years it has become a trusted source of information for journalists, politicians, those in government and members of the public.

UKHRB operates alongside a number of other excellent legal blogs, run by lawyers, students and enthusiasts for free, which provide a similar service in respect of other areas of law. I would highlight, for example[2]:

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Analysis: Occupy London loses final eviction court challenge

29 February 2012 by Leanne Buckley-Thomson

The Mayor Commonality and Citizens of London – v – Samede, Barda, Ashman, Randle-Jolliffe, Moore and Persons Unknown [2012] EWCA Civ 160 – Read judgment

Members of the Occupy London Movement who have been occupying an area close to St Paul’s Cathedral have had their applications for  permission to appeal the decision of the lower court to evict them refused by the Court of Appeal.  The judgment of Mr Justice Lindbolm was deemed ‘very full and careful’by the Master of the Rolls.  Shortly after midnight yesterday police began evicting occupants at the site.

In January we reported on the High Court battle between the City of London and the Occupy London Movement who had been occupying an area close to St Paul’s Cathedral. Mr Justice Lindbolm’s well-reasoned decision to grant possession, interlocutory and declaratory relief to the Mayor Commonality and Citizens of London meant that the Occupy Movement were to be evicted.

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My witness statement to the Leveson Inquiry – Part 1/2

29 February 2012 by Adam Wagner

Not me giving evidence

Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. Yesterday it was “read into evidence”, which means I can now publish it. You can download the entire statement here, and I have reproduced (what I think are) the interesting bits below and in a follow-up post. The questions in bold are those asked by the Inquiry in their request. I have not been asked to give oral evidence.

The extent to which you consider what ethics can and should play a role in the blogosphere, and what you consider ‘ethics’ to mean in this context.

The definition of “blogging” is now extremely wide, so much so that the term “blog” has become in essence meaningless.

A blog can be a “web log” within the original meaning of the word, that is a “personal journey published on the World Wide Web consisting of discrete entries (“posts”)” (Wikipedia), but it can also be a news and comment website such as UKHRB, a photo-sharing website, a website promoting a business – practically any website can call itself a blog. Mainstream newspapers now produce “blogs” online and as such the boundary between traditional journalism and blogging has also become unclear.

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First they came for the journalists…

23 February 2012 by Maria Roche

News of the deaths of Sunday Times reporter Marie Colvin and French photographer Remi Ochlik and the serious injuries of photographer Paul Conroy and Edith Bouvier, a freelance journalist reporting for Le Figaro, from a mortar shell that hit the building in Homs, Syria that they were using as makeshift media centre has saddened and shocked reporters and readers. So does a sobering list of more than fifteen of their professional colleagues who have also died reporting the Arab Spring.  Worse still are reports that the journalists may have been deliberately targeted by the Syrian government forces.  It is a reminder that journalists are offered too little protection by international law.

It is clear from the many tributes to her that Ms Colvin was an extraordinary person:  a woman of verve, replete with humanity, she was fearless in the face of carefully assessed and weighed risk.  In 2001 after losing an eye in a grenade attack by a Sri Lankan government soldier whilst reporting on the Tamil Tigers, she wrote:

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