Voyias v Information Commissioner and the London Borough of Camden EA/2011/0007 – Read Judgment
The First Tier Tribunal has overturned a decision of the Information Commissioner and ordered Camden Council to provide information about empty properties in the borough to a former member of the Advisory Service for Squatters.
When one thinks of the term “human rights”, the first example that springs to mind is likely to be the right to life, or the right not to be tortured or enslaved – fundamental guarantees that protect the basic dignity of our human condition. Yet human rights are also intended to serve the core goal of preserving and enhancing the strength and rigour of democratic and pluralistic societies, and so the European Convention of Human Rights (EHCR) also contains provisions guarding against discrimination, and protecting freedom of religion and expression.
Last month the Ministry of Justice published a report of a pilot project that ran last year whereby participating family courts produced and published on Bailii written judgments of specified Children Act 1989 cases. The project had three main aims:
to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases;
to help parties by providing written judgments in all cases, even where a matter was not contested;
to provide judgments which the children involved could access in later life.
The family courts are often perceived as ‘secretive’ or aloof; Munby LJ has made excellent arguments for greater transparency far more eloquently than I could hope to do in this speech (pdf)
As a number of recent cases have made clear, the filming of policing activity in public places is a vital method of holding police to account. But there have been continuing tensions between the police and photographers over filming police activity. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers. A campaign called “I’m a photographer, not a terrorist” was launched to protect the rights of those taking photographs in public places.
However, although Guidance issued by, for example, the Metropolitan Police has made it clear that
Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel.
With thanks to the Judicial Press Office, below is the full press release from the President of the Family Division in a case involving a “super injunction”, John Hemming MP, false allegations of pedophilia and some poor press reporting.
Press Release from the president of the Family Division: Re X (a child)
I am today giving two judgments, both of which will be in open court.
The first judgment will put into the public domain matters which, in care proceedings under the Children Act 1989 Parliament has decided are normally confidential to the court and to the parties. The second will explain why I have found a woman called Elizabeth Watson in contempt of court. After giving the second judgment. I will adjourn to hear any mitigation Ms Watson may wish to put forward as to why I should not send her to prison.
Case EA/2010/0204 Robinson v. Information Commissioner & Department for Communities & Local Government, First-Tier Tribunal, 19 July 2011
This interesting decision of the First-Tier Tribunal (not linked to this post, for reasons I shall explain below) goes to the circumstances in which a public authority can refuse under environmental information rules to disclose legal advice received by it. All lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest. Under the exemptions in the Environmental Information Regulations privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.
Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment
I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.
But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?
What is a “tort”? No, not a rich multilayered cake, but rather an “actionable wrong”. Tort law is also the means through which five Kenyans alleging they were mistreated in British detention camps in the 1950s may get damages. How do I know this? Because Mr Justice McCombe told me in a helpful summary of his judgment which was released on Thursday.
Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.
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.
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.
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 .
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. Continue reading →
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:
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.
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.
Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08)  ZACC 14 – read judgment
Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.
I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.
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“).
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.