Category: LEGAL TOPICS
19 September 2011 by Adam Wagner
Updated x 2 |Following on from Obiter J’s guest post, when considering the Metropolitan Police Commissioner’s attempt to force a Guardian journalist to disclose her source, it is worth revisiting the seminal case of Shayler, R [2002] UKHL 11. The case, which arose shortly after the Human Rights Act came into force, shows how heavily stacked the law is against those accused of causing to leak state secrets, but may also reveal some limited hope for journalists too.
Although it now appears that the case is being brought under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984, it is still worth examining the powers which the police have under both PACE and the Official Secrets Act.
Simply, according to the House of Lords in Shayler, there is no public interest defence to the charges under sections 1 and 4 and none will be implied by the courts as a result of human rights law. However, section 5 was not considered and may still bear fruit should a prosecution be brought under it.
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18 September 2011 by Guest Contributor
Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking. There is a suggestion that the Official Secrets Act 1989 may have been breached. The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
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16 September 2011 by Guest Contributor
In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) of the Freedom of Information Act (‘FOIA’).
The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.
This decision is worth noting on a number of grounds.
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16 September 2011 by David Hart KC
In the UK and EU, there are a lot of statutes and rules about climate change, and relatively little strategic litigation. Hop over the Pond, and we see exactly the reverse, a reflection of different political dynamics with the hostility of the US Congress to climate change legislation.
It is interesting to look at some of the US cases, not only because they lock horns with one of the big issues of our time, but also because they reflect a common problem the courts face in deciding their role when confronted with science which is, or is said to be, controversial.
We should start with the groundbreaking decision in Massachusetts v. EPA (549 U.S. 497 (2007)). The US Supreme Court held that the US Environmental Protection Agency had a duty to use its existing powers under the Clean Air Act and assess whether greenhouse gas (GHG) emissions from vehicles were a danger to the environment and, if that was the case, to regulate them. In the litigation, and contrary to the opinion of two of its previous general counsels, it had denied that it was under a duty to do so. This judgment was a highly important ruling, as it meant that no new legislation was necessary to get the climate change ball rolling. Thereafter the EPA turned to how it should regulate GHG emissions, as we shall see.
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15 September 2011 by Matthew Flinn
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.
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15 September 2011 by Alasdair Henderson
R (JG and MB ) v. Lancashire County Council [2011] EWHC 2295 (Admin) – read judgment here.
Public sector cuts are back in the news, with the trade unions warning of their plans to stage the biggest series of strikes in a generation. However, attempts to take the fight against the cuts into the courts as well as onto the streets were dealt a serious blow recently, as the Administrative dismissed an application by two disabled women for judicial review of Lancashire County Council’s decision to significantly reduce their budget for adult social care services.
This case provides a very helpful summary of the courts’ approach to public bodies’ equality duties (now the new general Public Sector Equality Duty in s.149 of the Equality Act 2010). It is also a reminder that the courts are reluctant to interfere with difficult social or economic decisions made by elected officials, as long as there has been proper consideration of the relevant factors, despite other recent cases where such decisions have been struck down.
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14 September 2011 by Lucy Series
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)
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13 September 2011 by Isabel McArdle
Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.
The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:
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13 September 2011 by Adam Wagner
The Equality and Human Rights Commission has published Hidden in plain sight, a report into disability-related harassment and how well this is currently being addressed by public authorities.
The report, which finds a “systemic failure by public authorities to recognise the extent and impact of harassment and abuse of disabled people” can be downloaded here, the “easy read” version here and the executive summary here. I have also reposted the Executive Summary via Scribd below. The Inquiry found, amongst other things:
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11 September 2011 by Adam Wagner
It is ten years since the terror attacks of 11 September 2001. Like many people, I have been thinking back to where I was on that day.
Bizarrely, given what followed, I spent 11 September 2001 only a few miles away from the United States military base in Guantanamo Bay. I was travelling through Cuba with friends, and we had reached the Eastern tip of the island, the seaside village of Baracoa. We had even visited Guantanamo Bay’s entrance the previous day; it was a tourist attraction which the Lonely Planet guide billed as the place where you could find Cuba’s only MacDonalds.
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9 September 2011 by Adam Wagner
At odds
Updated | The Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. It has also published a letter to ministers on reform of the Court.
It is already clear that the Commission has its work cut out because of the strong opposing views of its membership. After the publication of its initial consultation document, one of the Commission’s members, Michael Pinto-Duschinsky instantly said “I strongly regret the terms in which it has been presented.” Now the Commission’s chairman has had to publish a letter alongside its advice so that the views of one member (is it Pinto-Duschinsky again?), that there should be some form of “democratic override” of the court’s decisions, could be incorporated despite them not being agreed to by the other members.
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9 September 2011 by Rosalind English
When a Convention right arises in circumstances which also engage EU law, which court is the final arbiter of their meaning and application?
This is not as arcane a question as it appears, since in the UK many cases engage points of EU law, so Convention rights, which are part of the “general principles” of Community law, get in under the wire via the European Communities Act 1972. And in July the Council of Europe published the draft agreement for accession of the European Union as a signatory to the European Convention, which either adds another string to the ECHR bow, or a further layer of constitutional obscurity of interest only to international jurists, or both: – time will tell.
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8 September 2011 by Adam Wagner
In a recent speech about the August riots, the Prime Minister bemoaned the “twisting and misrepresenting of human rights”. Unfortunately, this practice is common in the press, sometimes by accident but often by design.
One common accusation against the Human Rights Act is that it prevents the state deporting some foreign criminals. This is sometimes true; for example, the state cannot deport anyone if to do so would put them at a real risk of being tortured. But other law can be “to blame” too for preventing deportation of criminals, as was the case with Learco Chindamo, the killer of head teacher Philip Lawrence. This has not prevented the Daily Telegraph from again using his case as an example of human rights gone wrong.
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7 September 2011 by Adam Wagner
The Justice Secretary Ken Clarke has announced that the ban on broadcasting in courts is to be lifted. Broadcasting will initially be allowed from the Court of Appeal, and the Government will “look to expand” to the Crown Court later. All changes “will be worked out in close consultation with the judiciary“.
Broadcasting in court is currently prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. However, the rules do not apply to the Supreme Court, the UK’s highest court of appeal. Since it launched in October 2009, the court has been filming hearings and making the footage available to broadcasters. And, since May of this year, the court has been streaming the footage live on the Sky News website.
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4 September 2011 by Adam Wagner
Updated | Next week will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.
Although terrorism is now mercifully low on the public agenda, the effects of 9/11 are still being felt across the legal system. The United Kingdom is soon to open an independent inquiry into the improper treatment of detainees by security services following the terrorist attacks. As things stand, the UK’s major human rights groups are boycotting the inquiry for fear that the government will be able to suppress evidence.
The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).
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