5 December 2012 by Rosalind English
X v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012) – read judgment
This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the “wild west” of the internet and the question of social media regulation.
This short judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,
The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.
Background to the case
The plaintiff (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.
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3 December 2012 by Rosalind English
Ruddy v Chief Constable, Strathclyde Police & Anor [2012] UKSC 57 – read judgment
The Supreme Court has ruled that an individual who claimed to have been assaulted by police officers was entitled to bring an action in the sheriff court (Scotland) seeking damages at common law and under the Human Rights Act 1998 against the relevant chief constable arising from the officer’s actions.
He was also able to claim damages under the 1998 Act against the chief constable and the Lord Advocate in connection with an allegedly ineffective investigation into the incident.
The following is based on the Supreme Court’s press summary. References in square brackets are to paragraphs in the judgment.
Background facts
The appellant was arrested in September 2004 and taken to a police station in Glasgow. He alleged that he was abused and threatened with violence by the Strathclyde police officers during and after the journey. In 2005 the Procurator Fiscal instructed the Complaints Branch to carry out an investigation into the complaint. In June 2005 she informed the appellant that she was satisfied that the available evidence did not justify criminal proceedings against any police officer. The Complaints Board also concluded that it was unnecessary to take any proceedings for misconduct against the police officers involved.
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3 December 2012 by Rosalind English
I posted previously on the decision by the US Court of Appeals for the Federal Circuit to uphold the patents on the genetics company Myriad’s gene sequences for breast cancer research and therapy. In September 2012 the American Civil Liberties Union once again petitioned for Supreme Court review. The Court should decide today whether to review the case.
The whole question of proprietary claims over genetic information is not limited to patents and is very much open to debate. In my piece on the US Bioethics Commission’s report to the Obama administration I discussed the challenge faced by lawmakers in regulating the increasing flow of genomic information so as to protect people’s privacy without shutting down the flow of data vital to biomedical research. Whilst it is true that the availability of patent protection creates vital incentives for such research, genetic testing companies like Myriad can extend their exclusivity beyond their patented products by creating limiting access to private databases containing information vital to interpreting the clinical significance of human genetic variations. There is concern that this threatens to impede the clinical interpretation of genomic medicine. The Genomics Law Report Journal reports that
National health systems and insurers, regulators, researchers, providers and patients all have a strong interest in ensuring broad access to information about the clinical significance of variants discovered through genetic testing.
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3 December 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
A bumper edition this week, mostly thanks to Lord Justice Leveson and his long-awaited report, released this week to a tumult of online commentary. In overshadowed, but potentially no less significant news, the House of Lords approved amendments to the “secret courts” Justice and Security Bill; the Joint Committee on Human Rights reported on the Crime and Courts Bill, and we have another round of arguments for and against the UK’s continuing association with the European Court of Human Rights.
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2 December 2012 by Adam Wagner
You know those films where a couple spend the first two acts hating each other until, possibly at night when it is raining, they realise they have been in love all along? It seems that following the Leveson Inquiry report, a winter romance is developing between the Mail on Sunday and the Human Rights Act.
In Bombshell by Leveson’s own adviser: His law to gag press is illegal as it breaches Human Rights Act, the Mail reveals an interview with Shami Chakrabarti, director of human rights advocacy organisation Liberty and also advisor to the Leveson Inquiry, in which she argues that any new law that made the government quango Ofcom the ‘backstop regulator’ with sweeping powers to punish newspapers would violate Article 10 of the European Convention On Human Right, which protects free speech (Update: for more, see this post by Hugh Tomlinson QC – he disagrees with Chakrabarti, although also points out she has been misrepresented).
It only seems like a few months ago (actually, it was only a few months ago) that a Mail editorial thundered: Human rights is a charter for criminals and parasites our anger is no longer enough. As Private Eye might say… just fancy that!
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29 November 2012 by Adam Wagner
The Leveson Report into the Culture, Practice and Ethics of the Press has been published. The full report (in four parts) is here. The Executive Summary is here. Thankfully, unlike the artist’s impression which accompanies this post, it is not written in early Hebrew script [Update – this post originally, wrongly, identified the text as Greek. That will teach me for trying to be clever…].
My statement to the Inquiry is
here. 1 Crown Office Row barristers represented the Metropolitan Police (Neil Garnham QC and Alasdair Henderson) and the Mayor’s Office for Policing and Crime (MOPC) (Peter Skelton).
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28 November 2012 by Alasdair Henderson
C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD [2012] ECHR 1911 – read judgment here.
The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery.
Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).
Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking – is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.
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28 November 2012 by Rosalind English
MXB v East Sussex Hospital Trust – read judgment
Elizabeth-Anne Gumbel QC of 1 Crown Office Row acted for the claimant in this case. She has nothing to do with the writing of this post.
In personal injury proceedings involving a child it was appropriate to grant an anonymity order prohibiting her identification since it would defeat the purpose of the proceedings to ensure that she received and kept compensation awarded for her injuries.
Publication of her name was not in the public interest, and the curtailment of her and her family’s right to respect for their private and family life that would occur could not be justified.
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28 November 2012 by Adam Wagner
Remember the Commission on a Bill of Rights? You know, the one set up by the Government in the early days of the Coalition to sort out the Human Rights Act? No, not the Leveson Inquiry; that’s about the media (you may have heard that it is reporting tomorrow). CBOR is the one with the eight lawyers, four selected by each of the Coalition partners, a bit like a legal Brady Bunch.
Some accused the Government of kicking the rights issue into the long grass by assigning it to a commission with a far away reporting date – the end of 2012. It seemed so far away, back in the halcyon summer of 2010. Remember David Cameron and Nick Clegg’ romance in the Rose Garden?
Well, the long grass has now grown and CBOR is due to report in just over a month. As I posted in July, the Commission has consulted the public for a second time. The responses have now been published, categorised into Individual responses, Respondent organisations and bodies and Postcard responses. In case you were wondering about the ‘postcard responses’ these resulted from campaigns organised by the British Institute of Human Rights and the Human Rights Consortium.
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27 November 2012 by David Hart KC
Sweetman v. An Bord Pleanala, CJEU, Advocate-General Sharpston, 22 November 2012 read opinion
In May 2012 the Habitats Directive celebrated its 20th birthday. It has been under a good deal of flak over the years, particularly from business interests both in and out of government. The reason is plain. The Directive has made member states identify important sites in their territories to the EU (with a certain amount of prodding on the way). It then tells them to keep those sites unaffected by development save in exceptional cases, where there is overriding public interest in the project, there is no alternative solution and, further, that there can be full compensation for the losses caused by the development.
So a member state cannot routinely fudge things against protected habitats in favour of whatever other public interest may be uppermost at the time – wind farms, or supermarkets or chemical works or residential newbuild on greenbelt, for instance. In all but exceptional cases (see here for my post on a proposal which was said to be exceptional), you must not adversely affect the site.
Now for this powerful system of protection in practice, thanks to a tour d’horizon (and de force) by the Advocate-General.
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27 November 2012 by Rosalind English
Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here
This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.
Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.
Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.
It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.
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26 November 2012 by Guest Contributor
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
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26 November 2012 by Guest Contributor
I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days.
It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the European Convention on Human Rights (ECHR) itself must seemingly be taken as a serious possibility, depending on the outcome of the next election. The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter?
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25 November 2012 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The government was on the defensive this week on a number of fronts. It suffered significant defeats in the House of Lords over its proposals for secret civil trials under the Justice and Security Bill. Prime Minister David Cameron has also received a barrage of criticism over his calls for tightening the criteria for judicial review applications. Meanwhile, the prisoner voting saga continues, with Justice Secretary Chris Grayling (on the eve of the deadline) giving Parliament (or, more accurately, a Parliamentary committee) three options on the issue. Meanwhile, a new criminal offence of stalking has been introduced.
by Daniel Isenberg
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22 November 2012 by Rosalind English
Oakes and others v R [2012] EWCA Crim 2435 – read judgment
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
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