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Official secrets and the powerful disinfectant

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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Article 50, the Supreme Court judgment in Miller and why the question of revocability still matters – Rose Slowe

25 January 2017 by Guest Contributor

With the Supreme Court having ruled yesterday that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU will undoubtedly revolve around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the government’s negotiation position. This post puts forward the hypothesis that such debates may become irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable.

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50 (see yesterday’s post on this blog which summarised the court’s judgment).  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s decision to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration.

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The importance of privacy in ancillary relief proceedings – High Court

16 September 2015 by Rosalind English

DL v SL [2015] EWHC 2621 (Fam) 27 July 2015 (Mostyn J)  – read judgment

This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.

There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right.
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Information law: when something is “on” an environmental measure

30 June 2017 by David Hart KC

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

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R. v. Foster: Reigniting the UK Abortion Law Debate

17 July 2023 by Guest Contributor

Last month marked one year since the startling repeal of Roe v Wade on the 24^th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.

South African police force should not shrink from investigating Zimbabwe torture allegations

14 May 2012 by Rosalind English

South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment 

South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.

South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law  (the ICC Act)  the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.

Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and  Slobodan Milošević.

As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of  complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe –

One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.

Now the tables are turning, and this universal jurisdiction is not being universally welcomed.

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Mother paraded as “intimidated martyr” to cheat gay couple of surrogacy arrangement – Family Court

11 May 2015 by Rosalind English

H & S (Surrogacy Arrangement) EWFC 36, 30 April 2015

M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post.  Read judgment here

H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life.  It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place. 
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Freemen on the Land are “parasites” peddling “pseudolegal nonsense”: Canadian judge fights back

30 September 2012 by Adam Wagner

Meads v. Meads, 2012 ABQB 571 (Canadian) – read judgment / PDF

Almost a year ago, I and some other legal bloggers wrote about a phenomenon known as the Freemen on the Land movement. I called the post Freemen of the dangerous nonsense, for that is exactly what the movement is, for those desperate enough to sign up to it. Now a Canadian judge has done many judges around the world a huge favour by exploding the movement’s ideas and leaders (or “gurus”) in a carefully referenced and forensic 192-page judgment, which should be read by anyone who has ever taken a passing interest in this issue, and certainly by any judge faced by a litigant attempting the arguments in court. 

The Freemen, alongside other groups with similar creeds, believe that if you change your name and deny the jurisdiction of the courts, you will be able to escape debt collectors, council tax and even criminal charges. As this member of the Occupy London movement, “commonly known as dom” wrote in guardian.co.uk (of all places) “if you don’t consent to be that “person”, you step outside the system“.

As you may have guessed, this magical technique never works in the courts, but judges are often flummoxed when faced with the arguments, which are odd and in many ways risible. But what has been lacking is an authoritative, systematic judgment explaining, in detail, why that is. Until now, that is.

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Equal marriage on the way as Bill published

25 January 2013 by Adam Wagner

A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.

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PRISM, Torture Abuses & Cutting the Backlog – The Human Rights Roundup

16 June 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn box 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. Links compiled by Adam Wagner, post by Daniel Isenberg.

Not our own proposed “Snooper’s Charter” getting the civil liberties groups excited this week, but the all-sensing eyes and ears of the American government.  Meanwhile, Europe publishes a useful handbook on asylum and immigration issues; whilst the Strasbourg Court cuts down its growing backlog of cases.

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Queen’s Speech, Abu Qatada and the NHS risk register – The Human Rights Roundup

13 May 2012 by Wessen Jazrawi

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.

This week saw the Queen’s Speech set out a number of legislative reforms, the veto of the release of the NHS risk register and the latest instalment in the Abu Qatada saga after the European Court of Human Rights declared his appeal was within time but nonetheless declined to hear it.

by Wessen Jazrawi

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You may have missed…

1 May 2010 by Guest Contributor

Posts you may have missed from last week:

Case law –

• Detention of mentally ill man was illegal April 30, 2010
• Prisoners in psychiatric hospitals not entitled to equal benefits with other patientsApril 29, 2010
• Medical intervention without parental consent violated child’s and parents’ Article 8 rights says Strasbourg CourtApril 21, 2010
• Judges should consider parents’ interests under Article 8 of the Convention before granting care ordersApril 20, 2010
• Media privacy of severely disabled musical prodigy protectedApril 28, 2010
• More prisoners disenfranchised, this time in Austria April 27, 2010

News –

• Super injunctions, bad habits and secret justice April 30, 2010
• High Court says Lord Carey “mistaken” on religious discrimination [updated] April 29, 2010
• 1688 Bill of Rights may protect Parliamentary expense scandal three April 29, 2010
• Three perspectives on the Bill of Rights April 28, 2010
• European Court to discipline UK for smacking children [updated] April 27, 2010
• Feature | Freedom of expression, the American way April 26, 2010

Headline- Round Up: Sir Cliff Richard’s case against the BBC reaches the High Court

23 April 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.

In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.

Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing.
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New anti-terrorism bill published

1 June 2011 by Adam Wagner

Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week. 

The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?

Some useful links for more information on the bill:

• Download a PDF version of the bill – also available below through some technical jiggerypokery (Scribd)
• Track the progress of the bill through Parliament (you can even get updates via RSS or email)
• The Home Office press release, including a summary of the bill (reproduced below).
• The interesting European Convention on Human Rights memorandum, which includes detailed analysis of the human rights challenges to control orders so far.
• The January 2011 Review of Counter Terrorism and Security Powers
• Update – The House of Commons Library briefing paper on the bill (thanks to AlexanderHorne1)

Police retention of photographs unlawful, High Court rules

27 June 2012 by Rachit Buch

The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.

Liberal societies tend to view the retention of citizens’ private information by an arm of the state, without individuals’ consent, with suspicion. Last week, the High Court ruled that the automatic retention of photographs taken on arrest – even where the there is no prosecution, or the person is acquitted – for at least six years was an unlawful interference with the right to respect for private life of Article 8 of the ECHR, as enshrined in the Human Rights Act.

The case was brought by two individuals. One, known as RMC, was arrested for assault occasioning actual bodily harm after she was stopped riding a cycle on a footpath. The second, known as FJ, was arrested on suspicion of rape of his second cousin at the age of 12. In both cases, the individuals voluntarily attended the police station, where they were interviewed, fingerprinted and photographed and DNA samples were taken form them, but the CPS decided not to prosecute.

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