Privacy v Freedom of Expression – in the South African bushveld

30 October 2025 by Rosalind English

Botha v Smuts and another [2024] ZACC 22

I recently came across this judgement by the South African Constitutional Court. As a “Saffa” myself, I rejoice in the case’s title, pairing the name of the penultimate prime minister of the old apartheid South Africa (Botha), and the name (Smuts) of a much earlier Prime Minister of the Union of South Africa from 1919 to 1948.

But this case concerned two ordinary people, an insurance broker and an environmental activist, locking horns over their respective rights to privacy and freedom of expression under the South African Bill of Rights. The Constitutional Court judgment – running into nearly 100 pages in the Butterworths Human Rights Cases – is an interesting example of “salami slicing”, where the court takes apart a protected right and determines which bits of it can be upheld in the circumstances, and which can be set aside. It is also a fascinating insight into how information on social media platforms involves constant “re-publication”, and what that means for privacy and free speech rights. And finally, the judicial reflections on publication of someone’s personal address in the days of WFH show how far we have changed as a society since the pandemic.

The facts can be set out briefly.

Background facts and law

The applicant, Mr Botha, is an insurance broker who resides and conducts business in Gqeberha. He is also the owner of the farm Varsfontein situated in Alicedale in the Eastern Cape Province, a hundred kilometers away from his home.

The first respondent, Mr Smuts, is a wildlife conservationist, farmer, researcher and activist. The second respondent (amicus) is the Landmark Leopard and Predator Project – South Africa, a conservation non-governmental organisation focusing on human wildlife conflict management and leopard and carnivore conservation. It was founded by Mr Smuts who is its executive director.

A member of a group of cyclists who participated in an organised adventure ride that traversed Mr Botha’s farm (legally) encountered a dead baboon and porcupine in cage traps. The animals appeared to him to have been exposed to suffering and distress. Outraged by what he saw, the cyclist photographed the dead animals in the cages with the intention of sharing the photographs with an organisation capable of taking action. He shared them with Mr Smuts on 1 October 2019.

He also sent Mr Smuts a detailed map depicting the location of Mr Botha’s farm on which he indicated the place on the farm where the photographs were taken.

Mr Smuts published a post on the second respondent’s Facebook page which included, amongst others,

(a) a photograph of a baboon trapped in a cage;
(b) a photograph of a porcupine trapped in a cage;
(c ) a Google search location of Mr Botha’s insurance brokerage address (which turned out also to be Mr Botha’s residential address) and telephone number.

And then there were seven: Pinto-Duschinsky quitting Bill of Rights Commission

12 March 2012 by Adam Wagner

Updated | Dr Michael Pinto-Duschinsky has told the BBC’s Sunday Politics that he is resigning from the Commission on a Bill of Rights, effectively citing artistic differences. The seven other commissioners apparently wrote to the Justice Secretary stating Pinto-Duschinsky was “significantly impeding [the Commission’s] progress”. He has also written an article in the Daily Mail explaining why he quit (see my other post responding to that).

I argued last week that the Commission should open up more, but leaked internal emails were not exactly what I had in mind.

The resignation is hardly a surprise. Pinto-Duschinsky’s relationship with the other Commissioners has been rocky from the start, and he has been unabashed about complaining publicly when he has felt his views were being ignored. When the Commission published its initial consultation document he instantly told the Daily Mail that he ”strongly regret[ed] the terms in which it has been presented.” He was concerned that the document ignored the extent to which the European Convention had undermined Parliamentary Sovereignty. However strong Pinto-Duschinsky’s views, this public airing of Commission laundry must have made very difficult to hold reasoned debates behind closed doors.

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Surveillance of Internet usage in the workplace

14 January 2016 by Kate Richmond

Social Media button on a keyboard with speech bubbles.

Barbulescu v Romania, 12 January 2016 – read judgment

In December 2015, the European Court of Human Rights, by 6 votes to 1, dismissed a Romanian national’s appeal against his employer’s decision to terminate his contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother.

Mr Barbulescu contended that his employer had breached his Article 8 right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right. The Court found that there had been no such violation because the monitoring of the account by his employer had been limited and proportionate.

Background facts

Mr Barbulescu’s employers asked him to create a Yahoo Messenger account for responding to client enquiries and informed him that these communications had been monitored. The records showed that he had used the Internet for personal purposes, contrary to internal regulations. The employer’s regulations explicitly prohibited all personal use of company facilities, including computers and Internet access. The employer had accessed the Yahoo Messenger account in the belief that it had contained professional messages.
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Round Up 20.01.20: The UK in the ECHR, Cypriot justice under the spotlight, deteriorating human rights in Russia and sentencing remarks on TV…

20 January 2020 by Thomas Hayes

Protestors demonstrate outside the Famagusta district court in Paralimni, Cyprus, at the trial of a 19-year old girl convicted of public mischief after withdrawing a rape allegation in contested circumstances. Credit: The Guardian.

A quick look at the “recent decisions” page of the British and Irish Legal Information Institute’s (BAILII) website did not, at first glance, give this author much cause for optimism in the preparation of this blog. However, a more careful reflection on the week’s events provided a plethora of material to consider, notwithstanding the absence of any recent decisions from the Supreme Court or civil Court of Appeal.

When the domestic courts go on leave, it falls to their European counterparts to pick up the slack and churn out judgments to help keep us occupied. It was with surprise however, that a hopeful scroll through the week’s European Court of Human Rights (ECtHR) decisions revealed not only the familiar names paying a visit to Strasbourg (ahem, Russia), but also that our own United Kingdom had put in an appearance at Europe’s legal naughty corner. Some further creative searching on BAILII revealed that the UK paid nine visits to the ECtHR last year, compared to Russia’s one-hundred and seventy-three.

In Yam v United Kingdom [2020] ECHR 41, a former MI6 informant and Chinese dissident failed in his attempt to have the ECtHR rule that his 2009 murder trial had been prejudiced by virtue of parts of it being held in camera, rather than in public. The applicant had relied upon the provisions of Article 6 of the European Convention on Human Rights, specifically 6(1) and 6(3)(d):

“1.  In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … [T]he press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

3. Everyone charged with a criminal offence has the following minimum rights:

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

The court held however that these provisions did not prohibit domestic courts from derogating from public hearings where special circumstances justified it. The measures adopted during his trial had met the requirement of necessity. Furthermore, the ECtHR considered itself poorly equipped to challenge national authorities’ judgement when assessing national security concerns. The court held that the trial judge had carefully balanced the need for openness against the national security interests at stake, and in so doing, had limited the private aspects of the trial to the minimum possible. Through such an analysis, he had satisfied himself that a fair trial was still possible. Consequently, there was no thus disadvantage to the applicant, who had suffered no breach of his Article 6 rights.

In other international developments, lawyers acting for a British 19-year-old in Cyprus filed an appeal against her suspended sentence for public mischief and fabricating an “imaginary crime”. The woman involved had initially made accusations of gang-rape against 12 Israeli youths before retracting her accusation in circumstances now disputed. Her defence have suggested that not only was she suffering from PTSD at the time her claims were withdrawn, but also that she was in fear for her life. The signed confession was in Greek rather than English and made after several hours of unrecorded questioning by detectives in the absence of a lawyer. Her legal team seek to have her conviction overturned.

Returning to purely domestic considerations, the week also saw the announcement that judicial sentencing remarks in high profile cases will in future be broadcast on television from Crown Courts. The move was lauded by broadcasters and the Lord Chief Justice as promoting transparency and as an aid to public understanding of the criminal justice system.

The move was not however uncontroversial. Concerns were raised by the Bar Council of England and Wales that the broadcast of sentencing remarks in the absence of fuller details of the trial could lead to a failure on behalf of viewers to appreciate why a particular sentence has been passed. They expressed anxiety that the audience will be deprived of relevant context, such as mitigation. Further fears included that increased disclosure of judges to the public eye could expose them to undue attack and criticism in circumstances where a given sentence proves unpopular. However regardless of the merits, the development was successful in affording current BBC radio 4 listeners one of the funnier moments so far of 2020, when Evan Davis introduced American lawyer Robert Shapiro to debate the topic with Lord Sumption, only to find that they had inadvertently invited an American political adviser with the same name to the PM show instead (listen here).

The week also saw:

• The Mail of Sunday file its defence at the High Court on Tuesday in response to a claim brought by the Duchess of Sussex for breach of copyright, invasion of privacy and misuse of personal data. The case concerns excerpts of correspondence between the Duchess and her father published by the newspaper.

• The ECHR deliver judgment in favour of nine Russians detained pending trial for as long as 7 years, some of whom remain incarcerated, in circumstances characterised by fragile reasoning of the courts and an absence of due process – DIGAY AND OTHERS v. RUSSIA [2020] ECHR 54.

• The entire Russian government resign in a move thought likely to pave the way for amendments to the country’s constitution favourable to current leader Vladimir Putin. The proposed reforms would strengthen the role of the Prime Minister and weaken that of the President. Mr Putin is constitutionally barred from standing again for the presidency but could transition into one of the roles in which the proposed constitutional changes are likely to vest more power. The reforms would also restrict the applicability of international law in Russia to circumstances where it did not contradict the constitution or restrict people’s rights and freedoms, a measure framed as one to increase national sovereignty.

• The High Court refuse permission to appeal in a case brought by a soldier, who contracted Q-fever whilst serving in Afghanistan, against the Ministry of Defence (MOD). The claimant soldier had alleged failings on behalf of the MOD in not providing him with adequate chemoprophylaxis to protect him from the disease – Bass v Ministry of Defence [2020] EWHC 36 (QB).

• A Jewish woman in London succeed in obtaining a religious divorce by launching a private prosecution under laws against controlling or coercive behaviour. The prosecution for this relatively new crime, known to listeners of the Archers, succeeded in pressuring the husband to grant a divorce which, according to Jewish law may be withheld by the man, resulting in the woman being unable to remarry. Such woman are known as ‘agunot’ (‘chained women’). But this woman’s chains have been broken through this innovative use of the criminal law.

Lastly, on the UK Human Rights Blog:

• Michael Spencer reviews the development over the last year as to how Article 8 of the European Convention on Human Rights is applied to immigration cases

About

3 December 2009 by Guest Contributor

The UK Human Rights Blog aims to provide a free, comprehensive and balanced legal update service. Our intention is not to campaign on any particular issue, but rather to present both sides of the argument on issues which are often highly controversial. We post on a huge range of legal issues, from human rights, to public, medical and environmental law.

Jasper Gold is the Blog’s Commissioning Editor, with Allyna Ng as Editing Assistant and an Editorial Team comprising Rosalind English, Angus McCullough KC, David Hart KC, Martin Downs, Jim Duffy and Jonathan Metzer.

The Blog is written by members of 1 Crown Office Row. Its searchable archive of case reports and comments dating back to 1998 (when the acclaimed Human Rights Update service  was launched) is freely available. The Blog also delivers a weekly Rights Round-up, written by our talented team of recent law graduates. We welcome posts from legal academics as well as practising lawyers.

In May 2017 the podcast series Law Pod UK was introduced alongside the Blog, featuring lively interviews with members of Chambers on caselaw and general legal developments.

Adam Wagner founded the Blog in 2010. The Blog has had over 6 million hits and averages well over 500,000 hits a year. The blog also has thousands of subscribers across email, Facebook and Twitter. It is regularly acclaimed by commentators and cited by leading lights in the legal community.

If you like the Blog, please do subscribe to our regular email updates. Law Pod UK episodes are freely available for download from Spotify, Apple Podcasts, Audioboom and many more platforms.

We would welcome your comments.

Editorial team

Jasper Gold

1 Crown Office Row

Jasper is developing a broad practice and accepts instructions in all chambers’ practice areas. As well as clinical negligence, public law, discrimination, data law, inquests and tax, Jasper gained experience as a pupil in commercial disputes and is comfortable with cases containing contractual or other commercial elements.

Since joining 1COR, Jasper has undertaken advocacy in the high court, county court and coronial court. He has appeared in several inquests, including ‘Article 2’ and jury inquests. He is currently instructed as junior counsel to the Commissioner of the Metropolitan Police in the Undercover Policing Inquiry, and is the Co-Commissioning Editor of the UK Human Rights Blog.

Twitter: @JasperSGold

Full C.V.

Allyna Ng

1 Crown Office Row

Allyna joined Chambers as a tenant in April 2025, following a probationary tenancy under the supervision of Amy Mannion KC, Shahram Sharghy, and Rachel Marcus.

Allyna is building experience in all of Chambers’ practice areas including public law and human rights, education, employment, and inquests and inquiries.

Prior to coming to the Bar, Allyna practised as a lawyer in Kuala Lumpur, Malaysia where she handled a variety of matters in all aspects of civil litigation. In her role, Allyna worked on cases involving freedom of religion, judicial review applications, defamation, and misfeasance in public office. Allyna has appeared in the Sessions Court, High Court, and the Industrial Tribunal, and assisted in cases before the Court of Appeal in Malaysia.

Full C.V.

Rosalind English

1 Crown Office Row

Rosalind English is one of the editors of the UK Human Rights Blog. She also presents Law Pod UK, a series of podcasts on legal developments relevant to Chambers work. 

She teaches law at Cambridge University Institute of Continuing Education.

Twitter: @rosalindenglish

Full C.V.

Angus McCullough KC

1 Crown Office Row

Angus McCullough has a varied practice which covers public law (including human rights), professional negligence, regulatory and disciplinary law, and the environment. He has acted as a special advocate in many of the most high profile national security cases in recent times (e.g. Abu Qatada, Ekaterina Zatuliveter, Al Jedda). Instructed by the Attorney General, he has appeared in contempt of court applications against the press and jurors (including the ‘Facebook juror‘ and the first internet press contempt case to be brought). He is also a recognised expert in medical law: complex and high value medical claims constitute a major part of his practice and in 2009, the year before taking silk, he was named ‘Personal Injury and Clinical Negligence Junior of the Year by Chambers & Partners. Before becoming a QC in 2010 he was on the panel of Treasury Counsel (A list from 2001-2010).

Twitter: @amccqc

Full C.V.

Martin Downs

1 Crown Office Row

Martin Downs practises in the field of equality and human rights. He has co-authored two books about Civil Partnership and Same-Sex Marriage and is a regular contributor to Family Law and Tolley’s Employment Law. He lectures on employment, equality, education and family law amongst other subjects and has made a number of media appearances – particularly about radicalisation.
He is very interested in the history, culture and politics of South Asia as well as Ireland. He tweets on legal matters too.

Twitter: @MartinJDowns

Full CV.

David Hart KC

1 Crown Office Row

David Hart practises in environmental law, medical law (particularly clinical negligence), professional negligence and construction. He has also appeared at a number of major public inquiries. David has particular experience of group actions in the environmental field and in medical cases.

He has been Chair of the Environmental Law Foundation since 2016, and has done pro bono work for them. He sat on a Research Ethics Committee at St Thomas’ Hospital for 10 years, and he has a particular interest in genetics. He is an accredited mediator. He has been a regular contributor to the Blog for the last 5 years, on all subjects under the sun.

Twitter: @hart_david

Full CV.

Jim Duffy

1 Crown Office Row

Jim was the Blog’s Commissioning Editor in 2017. His practice spans human rights, inquests, clinical negligence and employment law. Before transferring to the Bar in 2012, Jim was a solicitor whose work involved human rights cases on behalf of Iraqi civilians, British soldiers, jobseekers and immigrants.

After becoming a tenant at 1 Crown Office Row, he acted as Judicial Assistant to Lord Reed and Lord Hodge at the UK Supreme Court in 2013-14.

Twitter: @JimDuffy12

Full C.V.

Jonathan Metzer

1 Crown Office Row

Jonathan joined chambers as a tenant in September 2017 after completion of 12 months of pupillage. He has a broad practice across all areas of chambers’ work, with particular expertise in public and human rights law, asylum and immigration, clinical negligence and inquests. He appears regularly in the County Court, the Coroner’s Court and the Immigration Tribunals, and has also undertaken hearings in the High Court. 

Before coming to the Bar, Jonathan undertook voluntary work at The Death Penalty Project, Simons, Muirhead & Burton LLP. He also worked on a pro bono basis for the School Exclusion Project, acting as lay legal representative for the parents of excluded pupils at hearings in front of school governors and independent review panels. Jonathan was the Blog’s Commissioning Editor from 2017-2022.

Twitter: @JonathanMetzer 

Full C.V.

Founding Editor:  Adam Wagner

Adam was the founding editor of the UK Human Rights Blog. He was longlisted for the 2011 Orwell Prize for blogging. He is a tenant at Doughty Street, specialising in public law, human rights and medical law.  In 2015 he set up RightsInfo, an innovative new website that aims to bring human rights to life using infographics, stories and social media.

Twitter: @adamwagner1

About 1 Crown Office Row

1COR is a leading set of civil law Chambers. We are recognised as having leading practitioners in all aspects of healthcare law, clinical negligence and personal injury, professional disciplinary proceedings, public and administrative law, human rights, employment, professional negligence, costs, matrimonial finance, VAT and environmental law. We also have a team of 15 accredited mediators. You can read more about 1COR by clicking here.

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High Court rejects ‘failure to remove’ abuse claim

14 June 2021 by Dominic Ruck Keene

In a significant adverse judgment for child abuse claimants, DFX v Coventry City Council [2021] EWHC 1382 (QB), Mrs Justice Lambert rejected a claim brought by a number of claimants who alleged that the defendant council’s social services negligently delayed in instigating care proceedings and that had they been removed from the family home earlier they would have avoided serial abuse at the hands of their parents.

The factual background was that save for a hiatus between June 2001 and February 2002, the defendant’s social services department had been engaged with the claimants’ family throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. An interim order was in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.

The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants alleged that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and it was alleged that she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.

Strasbourg ties itself in knots over advertising ban

23 April 2013 by Rosalind English

Animal Defenders International v  United Kingdom, April 22 2013 – read judgment

In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.

This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,

The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.

….A robust democracy is not helped by well-intentioned paternalism.
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The EU Withdrawal Bill and Judicial Review: Are we ready?

15 January 2018 by Angus McCullough KC

A flash-back to 1980:  the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):

Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last five hundred years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it’s worked so well?

Hacker: That’s all ancient history, surely?

Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn’t work. Now that we’re inside we can make a complete pig’s breakfast of the whole thing — set the Germans against the French, the French against the Italians, the Italians against the Dutch… The Foreign Office is terribly pleased; it’s just like old times.

Hacker: But surely we’re all committed to the European ideal?

Sir Humphrey: [chuckles] Really, Minister.

Nearly 40 years later, as the Westminster Government seeks to extract the UK from the European project, chuckles are in short supply (in contrast to articles about Brexit).  This piece considers the role of judicial review as the EU Withdrawal Bill is enacted, and after Brexit day has dawned – and the capacity of the Administrative Court to meet the increased demands that will predictably be made of it.

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War inside the court room

29 March 2015 by Dominic Ruck Keene

Al-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 – read judgment

The High Court has ruled that the ECHR applies to situations where Iraqi civilians were shot during security operations conducted by British soldiers. When taken together with the parallel cases being brought against the MOD for breach of its Article 2 obligations towards its own soldiers, it appears increasingly likely that any operation undertaken by the British Army in the future will lead to legal challenges being brought against almost every aspect of its actions pre, during and post any use of military force.

Mr Justice Leggatt was asked to consider the scope of the UK’s duty under the ECHR to investigation allegations of wrongdoing by British Forces in Iraq. The Secretary of State accepted that anyone taken into custody by British Forces did have certain rights under the ECHR, in particular the right to life and the right not to be tortured. However, the one of two key areas of controversy were whether non detainee civilians who were killed outside the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004), were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR.
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High Court refuses fresh inquest in welfare benefits case

13 October 2021 by Nicola Logan

In Dove v HM Assistant Coroner to Teesside and Hartlepool & Anor [2021] EWHC 2511, the High Court considered the State’s obligations under article 2 ECHR with respect to those in receipt of welfare benefits as well as the scope of coronial inquiries both where article 2 is and isn’t engaged. Although it was argued that failings by the Department of Work and Pensions were relevant to a death by suicide, a fresh inquest was refused in the circumstances.

Background Facts

The Applicant’s daughter, Ms Whiting suffered with spinal conditions and numerous mental health conditions. As a result, she was awarded employment support allowance [ESA] under the ‘support group’ category.

In September 2016, Ms Whiting began reassessment. By way of questionnaire she requested a home assessment, indicating she rarely left the house due to mobility issues and anxiety. This was not passed to the Centre for Health and Disability Services [CHDA] who decided that she was to attend a face-to-face appointment on 16^th January 2017. On 6^th February 2017, Ms Whiting was informed that her ESA would be stopped as she had not shown ‘good cause’ for her failure to attend and had not therefore demonstrated limited capacity for work.

On 21^st February 2017 Ms Whiting, was tragically found unresponsive and was later pronounced dead. An inquest concluded she had died by suicide as a short-form conclusion. The Coroner told attendees that she had noted that there were ongoing discussions with the Department of Work and Pensions, but that it was not her function to question any decisions made by the Department.

However, a report by the Independent Case Examiner [ICE] in February 2019 (following a complaint made before the inquest had concluded) subsequently found that there had been “significant failings” by the Department in the events leading up to Ms Whiting’s death.

The Applicant applied to the Court under section 13 of the Coroners Act 1988 for an order quashing the Coroner’s determination and directing that a new inquest take place.

Case comment: Cadder – Presence of a lawyer at police interview required by Strasbourg rights of defence

28 October 2010 by Rosalind English

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 Read judgment

We  posted earlier on the Supreme Court’s ruling that  an accused person’s rights under Article 6 of the Convention are breached if the prosecution leads and relies on evidence of the accused’s interview by police, if a solicitor was not present for that interview.   Indeed Lord Hope thought it “remarkable”  that

until quite recently, nobody thought that there was anything wrong with this procedure. Ever since ..1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption.
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Retrospective legislation that interfered with judicial ruling violated the Convention and the rule of law

8 July 2014 by Rosalind English

R(on the application of Reilly (No. 2) and another) v Secretary of State for Work and Pensions, [2014] EWHC 2182 (Admin) – read judgment

The High Court has issued a declaration of incompatibility following a successful challenge to the Jobseekers (Back to Work Schemes) Act 2013. The regulations under the Act that sanctioned those who did not participate in unpaid “work for your benefit” schemes by depriving them of an allowance violated the rule of law protected by the Convention and this country’s unwritten constitution. However, the dispute did not engage Article 1 of the First Protocol to the ECHR.

Factual background

The claimants, Caitlin Reilly and Jonathan Hewstone (CR and JH)  had been unemployed and claimed jobseeker’s allowance. They objected to participation in schemes devised under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, in which they were required to work for no pay. As a sanction, the allowance could be withheld from those who refused to participate. CR complied with the requirement under the regulations to take unpaid work at Poundland so did not suffer any sanction. However, attendance on the scheme meant she was unable to continue her voluntary work in a museum, which she hoped would lead to a career in museums (see my previous post on her successful challenge to the scheme).  After that ruling, the regulations were amended to overcome the defects identified by the court. But the 2013 regulations, which applied prospectively, had the effect of retrospectively validating the 2011 Regulations, which the Court of Appeal had held to be unlawful. Then the Supreme Court allowed the secretary of state’s appeal against the Court of Appeal decision on the basis that the Act was in force. But the declaration in favour of CR remained valid, following the 2013 Act and that Supreme Court judgment; indeed counsel for the Secretary of State acknowledged the fact that Ms Reilly’s position was “not affected by the 2013 Act.”

JH had not been a party to Reilly No. 1. but his position was  clearly affected by that ruling. After initial attendance on a scheme for some months, he refused to participate further, and so his JSA payments were stopped for four specified periods by way of sanction. He in turn had successfully appealed against sanctions imposed by the 2013 scheme. The secretary of state’s appeal against those decisions had been stayed pending the outcome of Reilly.

The claimants submitted that the 2013 Act was incompatible with their rights under Article 6. It was an intervention in the ongoing proceedings in Reilly No. 1 which had the effect of determining the litigation in the government’s favour by retrospectively validating its unlawful acts. It thereby deprived both claimants of a fair determination of their civil rights and obligations, contrary to to the first paragraph of Article 6.  JH also relied upon Article 1 Protocol 1, claiming that by withholding his JSA, the defendant deprived him of a “possession” to which he was entitled. He submitted that the deprivation could not be justified as being in the public interest.

The court allowed the applications in respect of Article 6 but not A1P1.

Reasoning behind the judgment

Article 6 and the rule of law

CR and JH had brought proceedings against the state. The 2013 Act was directly targeted at resolving the Reilly litigation. As such, this legislative act by the government had amounted to an interference in ongoing legal proceedings: it had influenced the judicial determination in the secretary of state’s favour in Reilly and was likely to do so in JH’s appeals. Although Parliament was not precluded in civil matters from adopting retrospective provisions,  it cannot legislate so as to interfere with the courts’ handling of disputes before them:

 the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other on compelling grounds of the general interest –with the administration of justice designed to influence the judicial determination of a dispute. (Zielinski v France (2001) 31 EHRR 19)

Nor did the ruling in National & Provincial Building Society v United Kingdom (1998) 25 EHRR 127 avail the defendant, even though the Strasbourg Court ruled there that legislation to close an unforeseen tax loophole was compatible with Article 6. The government in that case, the Court concluded, had “compelling public interest motives” to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable.  By contrast, in the instant case the claimants could not have foreseen Parliament’s retrospective validation of its own unlawful act.

Although these principles emanate from decisions of the Strasbourg Court, in Lang J’s view, they also accurately reflected fundamental principles of the UK’s unwritten constitution, which enshrines the fundamental principle of the rule of law:

It requires, inter alia, that Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.

The secretary of state submitted that there had been compelling public interest grounds for the retrospective legislation. Lang J acknowledged that it was understandable that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them. But it was apparent from Strasbourg’s judgments, such as Scordino and Zielinkski, that financial loss alone was not a sufficiently “compelling reason in the public interest”. If it were, then retrospective legislation of this kind would be commonplace.” (para 107).

Not only was there insufficient public interest to justify the retrospective legislation but the government had been aware of the concerns about the legality of the statute because it had been brought to the attention of its proposer by the report of the Constitution Committee. One of its members, Lord Pannick, told the House:

this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes – Parliament is sovereign – but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government.

Whilst judicial review is more properly concerned with the substance of the legislation, not the reasons for it, Lang J wryly observes that the absence of any consultation with representative organisations, and the lack of scrutiny by the relevant parliamentary committees, “may have contributed to some misconceptions about the legal justification for the retrospective legislation.” (para 96). The government’s statement to Parliament explaining why the 2013 Act would be Convention compatible had not explained that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling public interest reasons. Further, the statement had erred in concluding that the case was comparable to National & Provincial as the legislation would be closing a loophole. It was not accurate to characterise the flaws in the 2011 Regulations as a loophole. The 2013 Regulations had remedied the technical defect identified by the court in the original Reilly litigation, but that did not mean there were compelling grounds to justify the interference with CR and JH’s rights under Article 6 to a judicial determination of their claims. The 2013 Act therefore violated Article 6(1) in relation to those who had pursued claims in the courts or tribunals.

Article 1 Protocol 1: had the Second Claimant been “deprived” of his “possessions”?

JH failed in his claim that he had suffered a violation of the right to respect for peaceful enjoyment of possessions. This was not because he had succeeded under Article 6 –  the rights protected by the respective provisions were different (AXA General Insurance Ltd, Petitioners [2011] UKSC 46).  Lang J accepted the claimants’ argument that a wholly state-funded non-contributory benefit could constitute a possession under A1P1, but JH’s right to the allowance depended on whether he met the conditions for receipt of the benefit. He had not met the conditions for future payment. He had not been deprived of an existing possession because there was no revocation of benefits previously received. This was made clear in Moskal v Poland, where the Strasbourg Court observed that

Art. 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the contracting state’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. ((2010) 50 EHRR 22)

It was clear from this statement of principle that, in order to establish a property right, the applicant must fulfill the requirements for receipt of the benefit at the relevant time.  Nor did he have a reasonable expectation that the allowance would be paid if his legal claim was successful. His claim was not an “asset” within A1P1.  His only reasonable expectation had been that his appeal would be determined in accordance with the law as it stood from time to time.

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The long shadow of the Yugoslav Wars – Part 2: The rulers of the ‘Croatian Republic of Herzeg-Bosnia’

1 December 2017 by Jonathan Metzer

On 29^th November 2017, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague delivered its judgment on six appeals by Croatian officials and military officers against their convictions for their actions during the Bosnian War of 1992-95.

These crimes, which included grave breaches of the Geneva Conventions and crimes against humanity, arose out of a joint criminal enterprise aimed at creating a Croatian entity in the territory of Bosnia and Herzegovina, known as the ‘Croatian Republic of Herzeg-Bosnia’. This was backed by the government of Franjo Tuđman, President of Croatia at the time.

Following the decision, Slobodan Praljak, one of the appellants, shouted out that he rejected the verdict and drank a vial of poison, dying later that day.

 
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Article 10

1 June 2010 by Adam Wagner

Article 10 | Right to freedom of expression

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Article 10 of the Convention provides:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Perhaps unsurprisingly this provision is almost constantly in the news since it involves the core interests of the media, outraged by the development of the so-called “super-injunction” to prevent the reporting of “kiss-and-tell” stories in the celebrity sphere, the main source of profit for the printed press. The current headache for lawmakers and enforcers is how to regulate the dissemination of this kind of information on the internet, particularly social network sites such as Twitter. See our discussions on these issues here, here, here and here.

Although Article 10 guarantees the right to “receive information”, this Article does not require the State to provide access to information which is not already available (Leander v Sweden (1987)9 EHRR 433), although a relatively recent case suggests that the Strasbourg Court may be sympathetic to Article 10 challenges where a government has refused to provide information; in Matky v Czech Republic, application no. 19101/03, the Fifth Section of the Court suggested that an ecological NGO was entitled to access to information about nuclear power stations under Article 10. However this application was ultimately found to be manifestly ill-founded as declared the application manifestly ill-founded, as in the Court’s opinion the interference satisfied the requirements set forth in paragraph 2 of Article 2.

As we see, there are a number of permissible exceptions set out in this Article. Note that no measures in pursuit of these legitimate aims will be justified unless the interference with the individual’s freedom of expression has been “prescribed by law”, and the interfering measure is “proportionate” (see our discussion of these terms in the Article 8 section. Measures can be taken to limit freedom of expression in the interests of the following:

(1)  National security, territorial integrity, public safety, the prevention of public disorder and crime ;

(2)  The impartiality of the judiciary;

(3) The protection of health and morals;

(4) The protection of the reputation and rights of others

(5) The licensing of broadcasting enterprises.

Section 12 Human Rights Act 1998 provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered. See Cream Holdings and Imutran v Uncaged Campaigns Limited [2001] EMLR 563 for Section 12 in application.

No interim order may be made that would infringe free speech rights without the respondent being present unless the applicant is able to furnish “compelling reasons” as to why the respondent should not be notified. The full impact of this section in injunction hearings was considered by the Court of Appeal in Douglas and Zeta Jones v Hello! Magazine, 8 May 2005 .

It is important to remember when considering the scope of Article 10 that Article 16 of the Convention also incorporated with the Human Rights Act provides:

Nothing in Articles Article 10, Article 11, and Article 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.

The usefulness of this provision should not be forgotten and it could in theory be used by the government to buttress the measures it wishes to take to combat incitement to arms, religious hatred etc.

Article 16 expressly authorises restrictions on the political activities of aliens even though they interfere with freedom of expression under Article 10 and other freedoms under the Convention.

• Return to Incorporated Rights Index
• Introduction to the Human Rights Act 1998

Pre-trial detention after expiry of the custody limit does not breach right to liberty

7 October 2010 by Maria Roche

Kevin O’Dowd v UK (application no. 7390/07) [2010] ECHR 1324 (21 September 2010) – Read judgment

The European Court of Human Rights has ruled that a man’s pre-trial detention did not breach his right to liberty. Mr O’Dowd, who had a previous conviction for rape, was denied bail despite the maximum custody time limit having expired.

Kevin O’Dowd was charged with rape, false imprisonment and indecent assault in early December 2001. He had a prior conviction for rape which brought him within the provisions of Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that bail should only be granted if there are exceptional circumstances justifying it.

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