Category: Article 8 | Right to Privacy / Family
18 May 2011 by Rosalind English
R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
A declaration has been granted by a majority in the Supreme Court that police policy of DNA retention is unlawful because it is incompatible with article 8 of the ECHR.
Guidelines under the current legislation allow destruction of DNA evidence only under “exceptional circumstances”; however police can be said to be acting unlawfully in retaining the evidence because the relevant provision of the Police and Criminal Evidence Act (PACE) should be ‘read down’ to accord with the right to privacy under the Convention.
The guidelines on DNA retention were introduced under Section 64(1A) of PACE, which provides that samples taken in connection with the investigation of an offence “may” be retained. The provision thus substituted a discretionary power for an earlier obligation in the statute to destroy data. The guidelines issued by the Association of Chief Police Officers (“ACPO”) guidelines provided that data should be destroyed only in exceptional cases.
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17 May 2011 by Adam Wagner
Good enough for Dickens
I posted last week on a judgment given by His Honour Judge Bellamy in a family court case involving a mother’s abuse of her baby The judge took the unusual step of criticising media reporting of the case. He said the Telepraph’s Christopher Booker’s reporting was “unbalanced, inaccurate and just plain wrong“.
There have been some developments since last week which raise interesting questions about the duty of journalists to report cases accurately. First, Sir Nicholas Wall, head of the family division, used his judgment in a different case to support HHJ Bellamy’s criticism. He said:
although I disagree with Judge Bellamy’s decision… I agree entirely with paragraphs 185 to 193 of his judgment in Re L under the heading “Transparency” and in which the judge deals with the tendentious and inaccurate reporting of the case.
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11 May 2011 by Rosalind English
I promised an analysis piece in my post on the Mosley judgment but there has been such an outpouring of comment and opinion on the case that a more useful exercise is to provide some sort of guide through the maze of material already out there.
This rather toothless ruling has, needless to say, received enthusiastic acclaim by the mainstream media, smarting with indignation over Twitter’s coup de théâtre re superinjunctions. See the Guardian coverage and the Express’s aptly named article Max Mosley Loses Privacy Case Amid Super-injunction Chaos. The Daily Mail of course goes straight to the Naughty Step with its triumphalist and inaccurate headline Victory for freedom of speech: European court rejects Mosley’s bid to impose new constraints on Press. First, it wasn’t the European Court (more commonly known as the ECJ). It was the European Court of Human Rights. Second, the rather mealy-mouthed judgment is hardly a ringing endorsement for freedom of speech; as Hugh Tomlinson points out, the press won the battle but the judgment confirms that it has lost the “privacy war”:
The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved [114].
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11 May 2011 by Maria Roche
The Department of Education today published the final report of Professor Eileen Munro into the child protection system in England. After extensive consultation, the report concludes that the social work profession needs to be freed from a compliance culture and stifling levels of central prescription in order to allow social workers to have more time to work with families and to restore the heart of the work.
Professor Munro was asked in June 2010 by the Secretary of State for Education, Michael Gove MP, to conduct an independent review to improve child protection. The Parliamentary Under Secretary of State for Children & Families (Tim Loughton MP) stated that the fundamental review should pose the question:
What will help professionals to make the best judgments they can to protect vulnerable people?
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10 May 2011 by Rosalind English
The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage – read judgment.
Adam Wagner’s prediction is bang to rights; although in this particular case the Court agreed that the newspaper had “flagrantly” violated Max Mosley’s right to privacy, it has refrained from ruling that UK law fell short of adequate protection of Article 8. “Particular care” had to be taken when examining constraints which might operate as a form of censorship prior to publication and generally have a chilling effect on journalism.
A new attitude of diffidence characterises this judgment in that the Court expressly refrains from considering the application of Convention rights to the facts of this case, since the UK Court had already decided on it. This suggests that Strasbourg is beginning to take on board criticisms that it is tending to arrogate to itself the role of supra-national court of appeal. There was no reconsideration therefore of the High Court’s assessment of the newspaper’s public interest defence nor of the balancing act that the judge had conducted between the right to privacy and the right to freedom of expression. The focus of this ruling was on the question of whether a legally binding pre-notification rule was required.
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6 May 2011 by Adam Wagner
L (A Child: Media Reporting), Re [2011] EWHC B8 (Fam) (18 April 2011) – Read judgment
The thought of being personally criticised in a reported judgment would make most lawyers break into a cold sweat. Some journalists wear such treatment as a badge of honour. But surely it is professionally embarrassing for a high court judge to label an article as “unbalanced, inaccurate and just plain wrong“.
That was the treatment handed out by His Honour Judge Bellamy to the Telegraph’s Christopher Booker in a recent ruling. The facts of the case are sad and I will not repeat them in any detail. HHJ Bellamy was asked to make a factual ruling relating to the alleged mistreatment of a baby by its family. He found that the mother was responsible for breaking the baby’s arm, an injury which led to the council forcibly removing the child from its parents’ care, as well as bruising to his hand and cheek. The judge did question, however, why it was necessary for the police to march the parents through a hospital wearing handcuffs.
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4 May 2011 by Guest Contributor
This is Part 3 of a three-part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 2 here.
There are at least four possible “ways forward” for the new law of privacy which has been developed by the courts over the past decade and which has, at least from the point of view of sections of the media, been very controversial. These four possibilities are as follows:
(1) Active steps could be taken to abolish the law of privacy and return to the pre-Human Rights Act position.
(2) The current “judge made” law of privacy could be replaced by a new “statutory tort” of invasion of privacy.
(3) A special “privacy regime” for the media could be established under a statutory regulator.
(4) “Steady as she goes” – the law of privacy could be left to develop in the current way – by the judges on the basis of the Article 8 and Article 10 case law.
Each of these possibilities gives rise to different issues and potential difficulties.
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2 May 2011 by Guest Contributor
This is Part 2 of a three part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 3 is coming tomorrow.
The “new law of privacy” has not been uncontroversial. Over the past week the press has complained bitterly about “gagging orders” and “judge made law”. These criticisms are not new. More than four years ago, with characteristic restraint, the commentator Melanie Phillips described the process of the development of privacy law in these terms:
“Driven by a deep loathing of the popular press, the judges have long been itching to bring in a privacy law by the back door. Thus free speech is to be made conditional on the prejudices of the judiciary …” (Melanie Phillips, “The law of human wrongs”, Daily Mail, 6 December 2006)
Her editor at the Mail, Paul Dacre, has been equally firm in his views:
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29 April 2011 by Guest Contributor
The Prime Minister has said that he is “uneasy” about the development of a privacy law by judges based on the European Convention when this should be a matter for parliament. In our contribution to the continuing debate on this issue we are re-posting this [update – three part!] discussion on the history and future of privacy law from Inforrm’s Blog.
Introduction
The “law of privacy” has been developed by the English Courts over the past decade. It is a common law development based on case law going back to the mid nineteenth century. But the pace of development has accelerated over recent years. The decisive factor has been the Human Rights Act 1998. In this area the Act has had “horizontal effect” – it operates in cases between two private parties. The action for breach of confidence has been transformed – almost beyond recognition.
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25 April 2011 by Adam Wagner
The Telegraph has launched a campaign to “Stop foreign criminals using ‘family rights’ to dodge justice“. The perceived inability of judges to deport foreign criminals as a result of the European Convention on Human Rights, and in particular the right to family life, is one of the most commonly heard criticisms of human rights law.
In an editorial yesterday, the Telegraph argued that the Human Rights Act has become “a means of undermining public safety, not of helping to protect it.” The newspaper claims that last year 200 foreign convicts avoided deportation by citing the right to family life”, which is “an absurd state of affairs”.
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25 April 2011 by Guest Contributor
OPQ v BJM [2011] EWHC 1059 (QB – Read judgment
The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution. Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case. This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.
The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).
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22 April 2011 by Adam Wagner
When the prime minister criticises judges, he tends to speak from his gut. The prospect of prisoners being given the vote by European judges makes him feel “physically sick”. And now, he is “a little uneasy” about the rise of “a sort of privacy law without Parliament saying so“.
David Cameron’s use of visceral language may reflect what many in the general public (as well as PR man Max Clifford) are feeling about the issue of wide-ranging injunctions granted by courts, seemingly all the time, to prevent salacious details of celebrities’ private lives being revealed. The latest involves a former big brother contestant’s alleged affair with a married Premier League footballer.
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19 April 2011 by Isabel McArdle
H and L v A City Council [2011] EWCA Civ 403 – Read judgment
In a decision bound to stir up strong feelings, the Court of Appeal has found that disclosures made by a local authority to other organisations of a person’s conviction for a sex offence against a child and future disclosures proposed by the authority were unlawful. The Court considered that the “blanket” approach to disclosure, even though the person with the conviction and his partner did not work directly with children, was not proportionate to the risk posed. Further, making disclosures without first giving the persons concerned the opportunity to make representations on the matter was unfair.
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15 April 2011 by Rosalind English
In a very short judgment about asset freezing orders the Court of Appeal has made some tart observations about the inchoate nature of Strasbourg’s rulings. These will no doubt have a certain resonance given the current fervid discussion about the competence of that court.
It was all in the context of an apparently esoteric argument about the precise nature of judicial review proceedings and whether or not they are covered by the fair trial guarantees of Article 6. The respondents’ names been placed on a United Nations list of persons believed to be associated with terrorism. The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.
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13 April 2011 by Adam Wagner
Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011) – Read judgment
What happens when the money for medical treatment runs out? The National Health Service has a limited budget. It also is obliged by law to provide necessary medical services to the public. Inevitably, some treatments will be considered unaffordable, and this sometimes leads to court challenges.
Two such challenges have arisen recently. One is interesting because it has been rejected (unless it is appealed) by the High Court, and the reasoning behind that rejection highlights how difficult it is to succeed in such claims, especially on human rights grounds. The other, because of the way it, and in particular its human rights aspects, has been reported. Not quite bad enough to merit placing on the legal naughty step, but not far off.
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R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
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