Category: CONVENTION RIGHTS
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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16 May 2011 by Adam Wagner
That was quick! The Supreme Court appear to have responded to the request I made on Thursday that hearings be broadcast live on the internet. From today, Sky News will be broadcasting all hearings live via this website.
All hearings at the court are filmed, but until now only broadcasters had been able to use footage. I first argued in October that this was a waste and the hearings should be live screened. I don’t actually believe that my posts had anything to do with this minor technological miracle, but I have tried it out and it works. This is very exciting. For the first time the general public, lawyers and law students can see the advocacy in the UK’s highest court of appeal live and unedited.
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16 May 2011 by Rosalind English
When does being not guilty make you innocent? This question arose coincidentally in two rulings, just over a month of each other, from the highest courts of the UK and South Africa respectively.
The Citizen and others v McBride concerned libel proceedings which had been brought against a former member of the armed wing of the ANC. McBride had been convicted of murder and sentenced to death in 1986 after killing three women in a bomb attack. Nine years later he was granted an amnesty by the SA Truth and Reconciliation Commission. The question before the Constitutional Court was whether a person convicted of murder, but granted amnesty under the Reconciliation Act, can later be called a “criminal” and a “murderer” in comment opposing his appointment to a public position.
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13 May 2011 by Guest Contributor
Birmingham City Council v Barker (Equal Pay Act : Other establishments) (Rev 1) [2010] UKEAT 0056_10_0905 (9 May 2011) – Read jugment
One of the allegations made about contingency fees is that they encourage lawyers to cut corners because they are not paid by the hour. It is an allegation which has been specifically made to me in the context of equal pay claims. So I was interested to see this latest Employment Appeal Tribunal decision which deals with a number of mistakes made during high volume equal pay cases.
The first point that is worth making is that it is a reminder of how hard fought these equal pay cases are. A concern about bringing cases under a contingency fee is that opponents can string cases out, or take highly adversarial approaches, to ensure that these cases cost the contingency fee lawyers lots of their time. The longer they take, the harder it is for contingency fee lawyers to make a profit, and the less likely it is to arise in these cases.
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12 May 2011 by Adam Wagner
The Director of Public Prosecutions has told the Society of Editors that more court hearings should be televised. The Ministry of Justice have responded by saying that they are considering changes but would want to consult the senior judiciary before making any “firm proposals”.
Starmer is right to say that “shining a light on the workings of the court room can only serve to boost its efficiency and effectiveness”. But before spending time and money opening up more courts to cameras, footage from the supreme court, which is already filmed at great expense, should be made more widely available.
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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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3 May 2011 by Rosalind English
In a modern liberal democracy we take for granted the fact that laws apply to all individuals and are enforced by the courts without special consideration of religious beliefs they may happen to have.
But for a while at least there was a very real danger of the dissolution of the divide between private orthodoxy and public principle following the widespread invocation of Article 9 in the courts. This came to a head in the furore over the former Archbishop of Canterbury’s intervention in the MacFarlane v Relate case, provoking some very sharp words from Lord Justice Laws. Although religious groups continue to rattle their sabres, a recent ruling from the Charity Tribunal suggests that the right to religion is losing its edge somewhat on the litigious battlefield. Does this mark a trend away from making concessions to the devout?
We posted previously on the somewhat convoluted history of Catholic Care v Charity Commission for England and Wales. Essentially the Charity wished to legitimise its policy of excluding same sex couples from its adoption services by seeking permission from the Charity Commission to amend its objects of association. They sought thereby to a statutory exception to the general prohibition on discrimination in the Equality Act 2010.
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3 May 2011 by Adam Wagner
The New York Times reports that after years of promising leads gone cold, the final piece of evidence which led to Osama Bin Laden was found by interrogating detainees in Guantanamo Bay, Cuba. Given the rough interrogation techniques which were in use at the prison camp, the killing has reopened the debate over torture, and whether it is ever justified.
Blogger David Allen Green, amongst others, asks whether the Bin Laden scenario may amount to an exception to the “otherwise absolute rule” that torture is wrong. I would like to pose a slightly different question: on the basis of current UK law, would it have been lawful for UK authorities to use information obtained under torture to capture or kill a known terrorist?
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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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R (on the application of GC) (FC) (Appellant) v The Commissioner of Police of the Metropolis – read judgment
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