Category: CONVENTION RIGHTS
30 May 2011 by Adam Wagner
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
Starting with the
Sharon Shoesmith decision, which has been
helpfully summarised by Obiter J. The Spectator
reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “
recognises that Balls blundered in the way he dismissed her“,
he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.
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26 May 2011 by Adam Wagner
In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
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25 May 2011 by Adam Wagner
The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary.
First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent) [2011] UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.
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25 May 2011 by Adam Wagner
Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment
The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.
This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).
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25 May 2011 by Maria Roche
AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 Read Judgment
In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.
The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.
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23 May 2011 by Adam Wagner
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
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23 May 2011 by David Hart KC
Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment
All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.
And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.
Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.
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22 May 2011 by Adam Wagner
I asked in a recent post whether journalists need to attend court hearings to report accurately. The post arose from judgment in a family court case involving a mother’s abuse of her baby. The judge took the unusual step of criticising the Sunday Telegraph’s Christopher Booker’s reporting, which he called “unbalanced, inaccurate and just plain wrong“. That criticism was then supported by the most senior family judge in a different judgment.
Christopher Booker has now responded to my post, although somewhat obliquely. He writes:
I was again attacked last week by a prominent legal blogger, for reporting on cases where the system appears to be going tragically wrong, without having sat for days in court to hear “both sides of the story”.
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20 May 2011 by Adam Wagner
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
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19 May 2011 by Alasdair Henderson
W v. M, S, an NHS PCT and Times Newspapers Ltd. [2011] EQHC 1197 (COP) – read judgment. In the midst of all the fuss over the last two weeks about ‘superinjunctions’ and the law on privacy (see our coverage here, here, here and here) the Court of Protection (“CoP”) has just granted an injunction imposing extensive reporting restrictions on the media in a case involving potentially controversial end-of-life issues.
The press has picked up on the decision mainly because the injunction is the first in the UK courts (and perhaps anywhere in the world) to specifically prohibit publishing restricted information on any “social network or media including Twitter or Facebook“. This is noteworthy given the recent furore about an anonymous Twitter user ‘outing’ a number of UK celebrities who had obtained injunctions (although given that Twitter is a US-based website, it is difficult to see how the order will be enforced). But the decision by Baker J is far more interesting for the way he described how the media’s free speech rights should be balanced against the parties’ privacy rights in the kind of sensitive cases dealt with by the CoP, and how he expressly distinguished it from the approach taken in celebrity cases.
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18 May 2011 by Adam Wagner
This week the Sky News website began broadcasting UK Supreme Court hearings live. I have been talking up this idea for a while, and in my view the new service marks an important moment for access to justice.
In its first few days, Supreme Court Live has been showing an insurance case which has been, shall we say, a little difficult to follow (of course it would have been much more difficult to follow but for the excellent advocacy on display…) But the service works well and the footage is of high quality by current standards.
Whilst watching the case my mind wandered to the nuts and bolts of the arrangement between Sky and the court, and whether there are plans to expand the service in the future. I asked the Supreme Court, and this is what they said.
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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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