Category: Article 8 | Right to Privacy / Family


General Warrants to Hack Computers Unlawful: Privacy International v IPT

1 February 2021 by

Supreme court grants FBI massive expansion of powers to hack computers |  Data and computer security | The Guardian
Credit: The Guardian

In Privacy International v Investigatory Powers Tribunal, the Divisional Court held that s.5 Intelligence Services Act 1994 does not permit the government to issue general warrants to engage in computer network exploitation (“CNE”) – more commonly known as computer hacking. The court also offered valuable guidance on warrants and what is required to make them lawful.

The Issues

There were three issues:

1.     Does s.5 Intelligence Services Act 1994 (“the 1994 Act”) permit the Secretary of State to issue ‘thematic’ or ‘general’ warrants to hack computers? General warrants are those which purportedly authorise acts in respect of an entire class of people or an entire class of acts (e.g. ‘all mobile phones in London’).

2.     Should the court allow the claim to be amended to include a complaint that, prior to February 2015, the s.5 regime did not comply with Articles 8 and 10 of the European Convention on Human Rights?

3.     If permission is given to amend the claim, should the new ground succeed?


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International Human Rights, Public Interest Immunity, and Brook House – The Round Up

24 August 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.

Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.


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Changes to Policing, Consent, and Three Landmark Cases- the Round Up

15 June 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

floyd

Credit: Lorie Shaull

Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.

The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.

In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.

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Transgender Rights, an Inquest Update, and the British Judge Suing the EU- The Round Up

4 May 2020 by

Conor Monighan brings us the latest updates in human rights law

In the News:

index

The long-delayed Domestic Abuse Bill returned to Parliament last week. It contains a number of measures, including a statutory definition of domestic abuse. The new definition will include not only physical violence, but also emotional, coercive and economic harm.

The Coronavirus has highlighted the importance of the Bill.  Many have expressed concern about the impact of the lockdown on abused individuals. Victims are trapped in their homes and many domestic abuse services reduced their support.

Disturbingly, the National Domestic Abuse helpline has seen a 25% increase in calls, and the Metropolitan Police has reported a similar increase in charges and cautions.

In Parliament, a number of MPs spoke out about their experience of domestic abuse. Bolsover MP Mark Fletcher described growing up with an abusive stepfather. Rosie Duffield MP, who herself is a survivor, also spoke powerfully.

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Round Up- The Child Sexual Abuse Inquiry reports, Equal Pay, and waiving Article 6

13 January 2020 by

Conor Monighan brings us the latest updates in human rights law

index

In the News:

ICCSA, the Independent Inquiry into Child Sexual Abuse, published its report into protecting children who live outside the UK.

It described how there has been “extensive” sexual abuse of children by British nationals whilst abroad. Between 2013 – 2017, 361 UK nationals requested consular assistance between 2013 – 2017 for being arrested for child sex offences. The inquiry suggested this was likely to be a small proportion of offenders committing crimes abroad.

The report highlights the case of Gary Glitter, who was able to travel abroad and abuse vulnerable children even after he had been convicted. Glitter was later sentenced again for abusing two girls, aged 10 and 11, in Vietnam.

ICCSA concluded that travel bans should be imposed more frequently to prevent this behaviour. It noted that Australia bans registered sex offenders from travelling overseas. ICCSA’s report also argued that the burden of proof for imposing travel bans should be reduced, saying that the need for evidence is often overstated by courts and the police.

The inquiry described the global exploitation of children as worth an estimated £27.7 billion, with developing countries being particularly at risk.

The full report can be read here. More from the BBC here.

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A Landmark Defamation Case and Child Spies: The Round Up

17 June 2019 by

Conor Monighan brings us the latest updates in human rights law

spy

Credit: The Guardian

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….

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Secret Surveillance and a ‘Canadian Genocide’: the Round Up

3 June 2019 by

Conor Monighan brings us the latest updates in human rights law

LGBT

Credit: The Guardian

In the News:

The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.

Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.

The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.

Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.

In Other News….

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Landmark ruling for inquests and Chelsea Manning released from prison: The Round Up

13 May 2019 by

Conor Monighan brings us the latest updates in human rights law

Manning

Credit: The Guardian

In the News:

Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.

Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.

Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.

She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court.
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The Round Up: Criminal Sentencing, Assisted Suicide and a warning to Facebook

3 December 2018 by

In the Courts:

Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.

The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.

Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).

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Round-Up: Civil Partnerships for all and the Unlawfulness of Hardial Singh.

8 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Marriage-009

Credit: The Guardian

In the News:

The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.

Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.

Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.

The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
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Human trafficking: is our system for combating it fit for purpose?

28 September 2018 by

trafficking.jpgHuman trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.

The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.

Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.

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ALBA Summer Conference 2018: A Review (Part 3)

24 September 2018 by

albaConor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC

Professor Alison Young

Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.

First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.

Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.
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The Round Up: attempted murder, mass data collection, and what the Vote Leave judgement really said.

17 September 2018 by

Skripal

Credit: The Guardian

Conor Monighan brings us the latest updates in human rights law

In the News:

The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal.  Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.

The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service.  The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.

In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
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The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

27 May 2018 by

Yes campaigners react as they wait at Dublin Castle for the official result of the Irish abortion referendum

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

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