Lord Neuberger, the Master of the Rolls, provided an interesting discussion on so-called “super injunctions” in a speech on 28 April 2010. He said that “Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so.”
Super injunctions came to prominence as a result of the case involving footballer John Terry, who initially used the courts to block publication of details of his extra marital affair, as well as all mention of the case.
The speech will be of particular interest to libel lawyers, as Lord Neuberger is currently chairing a high-profile panel to review super-injunctions which may lead to their demise. The speech provides a useful background to the issue in terms of human rights law, as well as in relation to freedom of speech in the United States (see our recent post on the topic).
Lord Neuberger gave little away, but does strongly emphasise the importance of open justice, which the super injunction has arguably diminished. The following paragraph may worry lawyers and celebrities who hope that the super injunction will survive:
29. But what of the substantive issue? How do we reconcile such injunctions with the principle of open justice? The first thing we could say is, as Mr Justice Tugendhat, the judge in the Terry case, pointed out, where such an issue is raised it requires intense scrutiny by the court. It does so because openness is one of the means by which public confidence in the proper administration of justice is maintained. Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so. Neither reality nor suspicion are an acceptable feature of any open society.
Update 2/5/10 – Joshua Rozenberg writes on libel reform in Standpoint: “… this mixture of cherry-picking and window-dressing had been the only libel reform that Straw could have got through before the general election.”
OM (ALGERIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT  EWHC 65 (Admin) – Read judgment
The claimant’s detention pending deportation was unlawful where (1) the Secretary of State had failed to take account of the guidance on immigration detention, which indicated that the mentally ill were usually unsuitable for detention and (2) the Secretary of State had failed to notify the Claimant of his right of appeal once a Court of Appeal had, in a similar case, determined such a right to exist.
The Claimant, having entered the UK illegally in 1996, had a string of criminal convictions and a Class A drug habit. Although he had claimed asylum in 1999 the whole of his claim was found by the Asylum and Immigration Tribunal (“AIT”) to be a fabrication. He had married and had two young children in the UK. The most significant issue, however, was his diagnosis in 2003 as suffering from schizophrenia.
McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010) – Read judgment
Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.
The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:
18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.
19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.
With all of the talk of the Conservative Party’s proposed new Bill of Rights, it is easy to forget that we have had one on the statute books since 1688. This will now be brought into sharp focus through the Parliamentary expenses scandal, where three ex-MPs are planning to use the 322-year old Act to argue that their prosecutions should be dropped as they have Parliamentary privilege.
The 1688 Bill of Rights (passed by Parliament in 1689) established many of the democratic rights which now find form in the European Convention on Human Rights (ECHR) and other similar sources, such as the First Amendment of the United States Constitution. Some of the language is familiar, such as the provision against “cruel and unusual punishments”, which foreshadows Article 3 of the ECHR.
The intention of the 1688 Act, which is still in force, was to establish rights seen as essential to restricting the power of the monarch, and bolstering the power and independence of Parliament. The Sovereign was restricted, for example, from establishing new courts or act as judge.
The key provision in respect of the three ex-MPs is:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
The 1688 act is still in force, and there is no doubt that it protects MPs and peers from legal action over what they say in parliament. But what is meant by ‘proceedings’? Does it cover a claim for parliamentary expenses? The defendants say it does.
And who should decide such a question? The former MPs are expected to argue that leaving it to the courts would interfere with separation of the powers, a fundamental constitutional principle under which the judges do not question the way in which parliament conducts its affairs.
The Bill of Rights is still occasionally cited in court. One notable example was during the “cash for questions” affair in the 1990s. Neil Hamilton, then a member of Parliament, brought an action in libel against The Guardian newspaper. The trial was stopped, as Mr Justice May considered that the prohibition on courts questioning Parliamentary proceedings would prevent The Guardian obtaining a fair trial. This led directly to the drafting of s.13 of the Defamation Act 1996 which allows someone being sued for defamation to waive “the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.”
In his article, Rozenberg goes on to discuss what he considers to be the comparative case of Les Huckfield, a Member of the European Parliament who was accused of dishonestly obtaining expenses of over £2,500 by deception.
Old and new
Clearly the battle lines are now being drawn in what will be interesting and potentially important litigation from a perspective of constitutional law. It is also an odd coincidence that three ex-MPs may save themselves from prison by citing a 322-year-old bill of rights at the same time that their Parliamentary ex-colleagues are attempting to enact a brand new one.
With apologies, this post originally appeared with the wrong title
The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners
The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed). Continue reading →
The Northern Irish perspective – Monica McWilliams, chief commissioner for Human Rights in Northern Ireland writes in The Guardian: “The Human Rights Act is central to the constitutional DNA of the UK. It underpins the devolution settlements while simultaneously elucidating the common values of the constituent nations. It also provides a necessary platform from which the sense of autonomy that devolution brings can be further built upon.” (see our post on the subject)
The NGO perspective: Qudsi Rasheed, Legal Officer for JUSTICE, the human rights NGO, writes in The Guardian: “The Conservative party’s approach to this issue has been cloak and dagger. The commission of lawyers set up by David Cameron to consider the bill of rights has been extremely secretive and none of its work has been published. Short of vague and often contradictory statements and political rhetoric by various members of the party, there has been very little in the way of concrete proposals and suggestions.”
The Australian perspective: The Australian Newspaper editorial on why the Australian Prime Minister, Kevin Rudd, was right to reject proposals for an Australian Bill of Rights: “The Rudd government’s decision last week to reject the idea of codifying rights is a recognition that Australia’s robust constitution, its strong parliamentary tradition of lawmaking, its independent judiciary, and its intelligent civic culture are the best protections for citizens. Far from protecting minority rights, statutory codification risked pitting the judiciary against the parliament by, in effect, becoming a third house of parliament.“
A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS  EWCA Civ 343 – Read judgment
This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection. The Lord Chief Justice has refused the appeal.
The case was unconventional, largely because of A’s own situation. A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care. Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’. Continue reading →
A number of newspapers reported yesterday that the Council of Europe, is to criticise the UK for failing to introduce a total ban on smacking children. The coverage splits along predictable lines, with the Daily Express and The Star both referring to “meddling” bureaucrats telling British parents what to do with their children.
The foreshadowed comments will apparently come in a debate to be held later today on “The smacking ban 30 years on: international debate“, where advocates against the corporal punishment of children will take stock of how far the smacking debate has come since Sweden banned corporal punishment 30 years ago, becoming the first country to forbid all forms of violence against children, including at home.
The Council of Europe, which monitors States’ compliance with the European Convention, have recommended that all states should secure to everyone within their jurisdiction, including children, the right to be protected from torture and inhuman or degrading treatment or punishment (Article 3 ECHR), the right to liberty and security (Article 5), and the right to a fair trial (Article 6).
The Independent sums up the position in the UK, where smacking in most schools but not at home is banned:
Though we have a partial ban in place and are about to close an eccentric loophole in that law which allows private tutors to whack their pupils (“reasonably”) our right to cuff our own children is still protected. Sir Roger Singleton, the Government’s independent adviser on child safety, recently published a report – Physical Punishment: Improving Consistency and Protection – which essentially recommended that smacking should be banned everywhere except in the home, by parents and those in loco parentis.
Update 30/04/10 – Libby Brooks writing in The Guardian: “Only the Liberal Democrats have committed in their manifesto to incorporating the UN convention into British law, which is probably about as hopeless a daydream as proportional representation. But, in the meantime, we cannot rely on benign self-regulation by parents alone. Smacking is assault, however you dress it up. It brings with it all the guilt, shame and assumptions of weakness and power that come with any attack on another human.“
Frodl v Austria (Application no. 20201/04) 8 April 2010 – Read judgment
The European Court of Human Rights has taken another opportunity to criticise a European state for not allowing a prisoner, in this case convicted of murder, to vote. Prisoners will not be voting in the upcoming UK General Election, which may yet lead to a slew of compensation claims against the Government.
We posted recently on the continuing refusal of the UK Government to comply with the 2005 judgment of Hirst v UK, where the European Court held that the ban on prisoners voting in the UK was a breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
In Frodl v Austria the Court said that any restriction on voting rights must be proportionate to the end pursued, and
“must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates.”
The Court went on to find a violation of the European Convention, for the reason that “it is inconceivable… that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction“.
The Court added that a prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“.
In the UK, the Government have shown little willingness to enfranchise prisoners and convicts. This may well be because it prefers the risk of thousands of compensation claims, as well as continuing criticism from Europe, to taking the politically unpopular decision of allowing convicted criminals to vote.
The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.
If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.
Similar but different
Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.
Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.
By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not Continue reading →
Lotfi Raissi, a pilot accused of being one of the 9/11 plotters, has been told by the Ministry of Justice that he is entitled to compensation for the effect that the accusations have had on his life. The announcement comes 9 years after his prosecution began.
Commentators have been scathing of the Government’s handling of the case. Afua Hirsch in The Guardian says that the case highlights “the unrestrained assaults on individual rights in response to allegations of terrorism and the long, drawn-out process of establishing the truth in the courts” and
The row over proposals to detain terrorist suspects for 90 days without charge takes on a surreal quality when looking at a case such as Raissi’s. The US authorities’ use of extradition proceedings – ensuring the co-operation of the CPS – became “a device to circumvent the rule of English law that a terrorist suspect could (at that time) be held without charge for only seven days”, the court of appeal said in a judgment of the case in February 2008.
Finally, eight years after he was released by order of the courts, the Ministry of Justice has said that he is to be regarded as “completely exonerated”. The length of time it has taken the Government to reach that conclusion is nothing short of disgraceful.
Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.
We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).
On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.
That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.
Adetoro v United Kingdom (Application no. 46834/06, ECtHR)
The European Court of Human Rights has ruled that there was no violation of of the European Convention on Human Rights when a man was convicted after the judge failed to direct a jury properly in relation to the Defendant’s silence in a police interview.
The Court found there was no violation of Article 6 as the Defendant had not been convicted on the strength of his silence alone and there had been no unfairness in the trial as a whole.
The Applicant had been convicted of offences relating to a string of robberies. When interviewed by the police he had answered “no comment” to questions in relation to his movements recorded by police surveillance, association with other persons and whereabouts when the robberies were occurring. At trial, he admitted involvement in dealing in stolen cars and claimed that this explained the matters which the police had observed. He explained his silence on the basis that he did not wish to incriminate others.
In summing up, the judge omitted from his direction to the jury words to the effect that no inferences could be drawn from the Applicant’s silence unless its members were satisfied that the reason for his silence was that he had no answer to the questions asked or none that would stand up to scrutiny.
Google have announced the launch of a new Government Requests tool, which according to the Official Google Blog aims to “give people information about the requests for user data or content removal we receive from government agencies around the world.”
According to the tool, the UK currently ranks number 2 in Europe for information removal requests, behind Germany, and 3rd in the world for data requests, behind the US and Brazil.
It appears that the internet search company, whose unofficial corporate motto is “Don’t be Evil“, is attempting to make up for recent public controversies over censorship in countries where rights to freedom of information and expression are lacking. Google has had a particularly rocky relationship with China, who insisted that certain sites were blocked from Google search. After public pressure and a number of public confrontations, Google have recently moved operations to Hong Kong and shut down the search service completely.
Yesterday’s announcement begins by quoting the Universal Declaration of Human Rights, which is similar to the European Convention on Human Rights. It says:
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