Does a risk of an explosion engage Article 8?

15 February 2012 by David Hart KC

Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment

This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.

As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.

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Article 11

1 June 2010 by Adam Wagner

Article 11 | Right to freedom of assembly and association

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Article 11 of the Convention provides as follows:

(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police, or of the administration of the State.

The right to freedom of assembly covers peaceful protests and demonstrations. Public and private meetings are protected under this Article. These may be limited mainly on the grounds of public order. In most cases Article 11 rights are considered together with the right to freedom of expression under Article 10 and sometimes the right to a fair trial under Article 6. The Strasbourg Court will only reach a ruling under Article 11 if it considers that this is the lex specialis to be applied in a given case, in other words whether its provisions are more relevant to the facts than those in Article 10.

The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective. Freedom of association also implies a negative right for individuals who may not be compelled to join an association: (1) Young (2) James (3) Webster v United Kingdom (1981) 4 EHRR 38 (a case concerning closed shop agreements) and Sigurdur A Sigurjonsson v Iceland (1993) 16 EHRR 462 (compulsory membership of a taxi association breached the applicant’s right to freedom of association). In addition to this in the recent case of Demir & Baykara v. Turkey (10 November 2008), the Grand Chamber held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions, something of a departure from the case law on this particular element of trades unionism in the seventies. States are also under a positive obligation to provide legal safeguards for employees against actions taken by private employers. In one case a private company dismissed the applicant who was a candidate for the British National Party, because he might allegedly have offended clients of ethnic origin if they discovered his leanings. The Strasbourg Court upheld his complaint under Article 11, concluding that his right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs: Redfearn v United Kingdom, 6 November 2012.

Freedom of assembly is often in the news as demonstrations, sit-ins, staged occupations and other forms of protest are part and parcel of the public life of a liberal democracy.   We discuss the application of domestic public order laws and the extent to which they can be mitigated by Article 11 here.

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• Introduction to the Human Rights Act 1998

Government acted unlawfully in assisting USA to prosecute IS fighter — an extended look

14 April 2020 by Sapan Maini-Thompson

To what extent can the government be held liable for facilitating the imposition of the death penalty in a foreign state?

Since signing the Sixth Protocol to the European Convention in 1999, the UK has refused to extradite or deport persons to countries where they are facing criminal charges that carry the death penalty.

There is no judicial precedent, however, which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country. Therefore, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, there were two questions before the Supreme Court:

1. Whether it is unlawful at common law for the Secretary of State to provide mutual legal assistance (in the form of evidence) that will facilitate the death penalty in a foreign state against the individual in respect of whom the evidence is sought; and

2. Whether and in what circumstances it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of European Union data protection law, for law enforcement authorities in the UK to transfer “personal data” to law enforcement authorities abroad for use in capital criminal proceedings.

In a judgment which showed tremendous sensitivity to the primacy of the legislature, a majority of the Supreme Court (with Lord Kerr dissenting) held the provision of mutual legal assistance (MLA) was not unlawful under the common law.

Nonetheless, the Court unanimously allowed the appeal on the second ground under Part 3 of the DPA 2018, overturning the ruling of the Divisional Court.

School did not breach suspended pupil’s Convention rights, says Supreme Court

29 June 2010 by Isabel McArdle

In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27

The Supreme Court found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring – read judgment

A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:

No person shall be denied the right to education…

The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.

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‘Revenge porn’ is a misnomer

10 March 2021 by Ruby Peacock

Why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015

The digital world is becoming an increasingly dominant part of daily life. This has been thrown into sharp relief by the current public health crisis, which has seen almost every facet of our lives move online; from socialising, to work, to healthcare, to dating and sex. However, regulation of the digital world is struggling to keep pace with technological change (see the UK Human Rights Blog’s technology section for commentary on this phenomenon). Lawmakers simply cannot keep abreast of the reforms necessary to protect victims from online criminality. One area in which Parliament has made some progress is the sharing of private sexual images, or ‘revenge porn’, as it has come to be known. This article will outline recent developments in the law around sharing of private sexual images; interrogate the terminology used in this area; and suggest reforms to the relevant legislation.

In 2014, the Crown Prosecution Service published guidelines on existing legislation, in an attempt to support convictions for the crime of sharing private sexual images without consent.^[1] However, after mounting pressure from campaign groups, the Criminal Justice and Courts Act 2015 (‘the Act’) created the offence of ‘Disclosing private sexual photographs and films with intent to cause distress’, which is punishable by up to two years in prison.^[2]

More recently, legislation around sharing private sexual images became the subject of a new campaign, seeking to make the act of threatening to share private sexual images a criminal offence. This campaign was supported by organisations such as Refuge, 44,615 of whose supporters wrote to government ministers requesting a change in the legislation.^[3] A reality television star, Zara Mcdermott, added her voice to this campaign in a BBC documentary entitled ‘Zara McDermott: Revenge Porn’.^[4] In the documentary, Ms McDermott recounts two instances of having private sexual images shared without her consent. The documentary also covers the harrowing story of Damilya Jossipalenya, who was at university in London when she jumped to her death from the window of her flat. Ms Jossipalenya’s suicide followed a campaign of harassment by her boyfriend, who had threatened to share a video of Ms Jossipalenya with her family in Kazakhstan. This segment of the documentary ends with Ms McDermott explaining why she believes the threat to share private sexual images can be equally as damaging as the act of sharing them.

Anonymity refused in privacy case – despite agreement of parties

8 November 2010 by Guest Contributor

Updated | On 5 November 2010  judgment was handed down in JIH v News Group Newspapers ([2010] EWHC 2818 (QB)) – Read judgment.

Update, 18 November 2010: The case has returned to the High Court after the Daily Telegraph reported a key detail relating to JIH’s identity. This was contrary – said JIH – to the court order. Mr Justice Tugendhat refused the application by JIH that his/her identity not be disclosed. However, he did sound a warning that “editors and publishers have regard to the “duties and responsibilities” referred to in Art 10(2) itself. These duties and responsibilities include a requirement that they comply with orders of the court, and that they take all necessary steps to ensure that journalists understand this necessity.” If they ignore that warning, warned the judge, they may be found in contempt of court.

This post by Mark Thomson first appeared on the media law blog Inforrm, and is reproduced with permission and thanks

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New feature | Articles of the European Convention on Human Rights

5 June 2010 by Guest Contributor

The European Convention - now it has its own blog page

We have added a new “ECHR” page where you can access an index of the Articles of the European Convention on Human Rights.

The page can be accessed by clicking here, or by clicking on the “ECHR” tab at the top of any page on the blog.

Each Article has its own separate page with the wording of the Article itself and a brief summary of how it works in law.

You can access this summary by clicking on the “more info” link. You can also click on the “posts” link to see all posts on the UK Human Rights Blog relating to that Article. A few articles don’t have a live link “posts” as we have not posted on it yet. We would welcome your comments on this or on any way we can make the blog better.

The index is reproduced below:
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No duty of care to disclose to pregnant daughter father’s genetic disease – High Court

20 May 2015 by Rosalind English

ABC v St George’s Healthcare NHS Trust and others [2015] EWHC 139, Nicol J – read judgment

Philip Havers QC  and Hannah Noyce, and Elizabeth-Anne Gumbel Q.C. and Henry Witcomb  of Crown Office Row represented the defendants and claimant respectively in this case. None of them have had anything to do with the writing of this post.

I have blogged before on the Pandora’s box of ethical problems and dilemmas emerging out of our increasing understanding of genetic disorders (see here, here and here), and here is a case that encompasses some of the most difficult of them.
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Semi-naked RocknRoll pics can’t be published in Sun, rules High Court

18 January 2013 by Jim Duffy

Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) – Read judgment

Earlier this month, Rocknroll came to the Chancery Division.  Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaper from printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.

In Edward Rocknroll v. News Group Newspapers Ltd, the Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR).  As such, the photographs cannot be published nor their contents described pending a full trial.

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Browser Generated Information: “loss of control” entitles search engine users to compensation

4 October 2019 by Rosalind English

Richard Lloyd v. Google LLC [2019] EWCA Civ 1599

The Court of Appeal has ruled that a claimant can recover damages for loss of control of their data under section 13 of Data Protection Act 1998 without proving pecuniary loss or distress. The first instance judge, Warby J, had dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction in the USA, so preventing the claim getting under way.

The following paragraphs are based on the Court of Appeal’s own summary of the judgment.

The central question was whether the claimant, Mr Richard Lloyd, who is a champion of consumer protection, should be permitted to bring a representative action against Google LLC, the defendant, a corporation based in Delaware in the USA. Mr Lloyd made the claim on behalf of a class of more than 4 million Apple iPhone users. He alleged that Google secretly tracked some of their internet activity, for commercial purposes, between 9th August 2011 and 15th February 2012.

Anemometers, environmental information, and legal advice: the Planning Inspectorate’s duty to disclose?

25 August 2011 by David Hart KC

Case EA/2010/0204 Robinson v. Information Commissioner & Department for Communities & Local Government, First-Tier Tribunal, 19 July 2011

This interesting decision of the First-Tier Tribunal (not linked to this post, for reasons I shall explain below) goes to the circumstances in which a public authority can refuse under environmental information rules to disclose legal advice received by it. All lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest. Under the exemptions in the Environmental Information Regulations  privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.

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When the EU implements Aarhus against itself, oh, how minimally it does it.

3 July 2012 by David Hart KC

On the EU watch again, I am afraid. We have looked at getting documents out of the EU, in the context of the IFAW case about the German Chancellor’s letter, via Regulation (EC) No 1049/2001 (the EU Access to Information Regulation). And also on how to seek annulment of  EU laws and decisions from the EU courts (Inuits and all that). Both apply to all EU issues. We have mused on what might happen if the EU institutions sign up to the ECHR, so that complaints about them can go to the Strasbourg Court.

Article 10

1 June 2010 by Adam Wagner

Article 10 | Right to freedom of expression

Read posts on this Article

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.

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• Introduction to the Human Rights Act 1998

Supreme Court dismisses self-incrimination appeal

9 July 2012 by Guest Contributor

Philips v Mulcaire [2012] UKSC 28 – read judgment

The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.

The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self-incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities.
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Man detained by police under mental health law was not denied access to justice

10 December 2010 by Adam Wagner

Seal v United Kingdom (Application no. 50330/07) – Read judgment

The European Court of Human Rights has rejected the claim of a man detained by the police for 9 days under mental health law. Despite legislation deliberately making it difficult to sue authorities carrying out mental health functions, the court ruled that the law did not unduly restrict access to the courts.

Although Mr Seal ultimately lost, his claim – and in particular a strong dissenting judgment by Baroness Hale in the House of Lords – highlights the tricky line the state must tread in relation to people with mental health problems in relation to their access to justice.

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