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The Front Page in the Digital Age: Institute of Advanced Legal Studies publishes report on protecting journalists’ sources

3 March 2017 by Guest Contributor

newspapers-444447_1920A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.

The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment. Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.

The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources.
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Unlimited Immigration Detention and the Right to Liberty – the Round-up

24 May 2016 by Hannah Lynes

Photo credit: RT

In the news

The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.

The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.

This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.

The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.

It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.

In other news

The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.

A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.

The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo

In the courts

The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).

The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.

The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.

Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.

Publications

Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.

UK HRB posts

CA says ex-pats cannot say yes or no to Brexit – David Hart QC

The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner

Three Way in the Supreme Court: PJS remains PJS – David Hart QC

The National Preventive Mechanism of the United Kingdom – John Wadham

Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC

Hannah Lynes

NI Judge acquits Pastor of “gross offence” against Muslims

17 February 2016 by Rosalind English

MolanaDPP v McConnell [2016] NIMag (5 January 2016)

Silence is the language of God, all else is poor translation.

(Jalāl ad-Dīn Muhammad Rūmī , 13th Century Persian Islamic scholar and poet)

These words were the last in the ruling by DJ McNally in the Belfast county court, acquitting Pastor McConnell of grossly offending Muslims in a sermon that had been delivered in church but also transmitted over the internet. The Pastor had declared from the pulpit the there were more and more Muslims “putting the Koran’s hatred of Christians and Jews alike into practice”, and the sermon had continued in a similar vein.
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Stop Powers under the Terrorism Act 2000 incompatible with Article 10

21 January 2016 by David Scott

David MirandaDavid Miranda -v- Secretary of State for the Home Department  [2016] EWCA Civ 6 – read judgment.

On Tuesday the Court of Appeal handed down its judgment on David Miranda’s detention under the Terrorism Act 2000 and, while upholding the lawfulness of the detention in the immediate case, ruled that the stop powers under Schedule 7 of the Terrorism Act lack sufficient legal safeguards to be in line with Article 10.

by David Scott

See RightsInfo’s coverage here. For our coverage of the High Court’s previous decision see here, and on his original detention here and here.

The Case

Mr Miranda, the spouse of then-Guardian journalist Glenn Greenwald, was stopped and detained by the Metropolitan Police at Heathrow Airport on 18 August 2013 under paragraph 2(1) of Schedule 7 of the Terrorism Act 2000. He was questioned and items in his possession were taken by police, including encrypted material provided by Edward Snowden. Mr Miranda was detained for nine hours, the maximum period permitted at the time (since reduced to six hours).
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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.

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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The Round-Up: Lawyers lament UK’s refugee response

12 October 2015 by Hannah Lynes

imgres-7This week’s Round-up is brought to you by Hannah Lynes.

In the news

  • Call from legal community for urgent action on refugee crisis

More than 300 lawyers have signed a statement denouncing the Government’s response to the Syrian refugee crisis as “deeply inadequate”.

The document, whose signatories include former President of the Supreme Court, Lord Phillips, three former Law Lords and over 100 Queen’s Counsel, describes Prime Minister David Cameron’s offer to resettle 20,000 Syrian refugees over 5 years as “too low, too slow and too narrow.”
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Caped Crusaders and Princely Rights – The Human Rights Round-Up

19 April 2015 by Laura Profumo

Photo credit: The Guardian

Photo credit: The Guardian

Laura Profumo runs through the week’s human rights headlines.

In the News:

The Conservative party published its manifesto last week. The document makes for curious reading, writes academic Mark Elliott. The manifesto confirms the party’s pledge to scrap the Human Rights Act and to replace it with a British Bill of Rights, reversing the “mission creep” of current human rights law.

Yet the polarising references to “Labour’s Human rights Act” illustrate the Act’s failure to secure supra-political constitutional status, being tossed between the parties like a “political football”, writes Elliott.

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Transparency in the Court of Protection: press should be allowed names

19 March 2015 by Rosalind English

312856-002.jpgA healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment

The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.

This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second
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Article 11 and the Met’s “pay to protest” proposal

8 March 2015 by Hannah Noyce

Photo credit: The Guardian

Photo credit: The Guardian

A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.

One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.

The Met ultimately backed down – but what if it hadn’t? What is the legal position?

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The Big Fat Gypsy Judicial Review

26 February 2015 by Jim Duffy

images

Traveller Movement v Ofcom and Channel 4, [2015] EWHC 406 (Admin), 20 February 2015 – read judgment

One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.

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Critics of Islam prevented from entering UK to attend Lee Rigby rally

15 February 2015 by Rosalind English

rigby-mother_2659292bGeller and another, R (on the application of) v  The Secretary of State for the Home Department [2015] EWCA Civ – read judgment

This short case involves the old dilemma of public order law: whether it is right to shut down speech when the speaker himself does not intend to incite violence, but whose presence it is said may lead third parties to commit violence. Indeed the facts of this particular case go further than that , because the applicants had no plans to make any public address during their proposed visit to Britain. It was their presence alone which was feared would inflame “community tensions”.

The applicants were two well-known US writers whose critical views of Islam led to them being prevented from entering the country in May 2013, to speak at a rally  in the aftermath of the terrorist murder of Drummer Lee Rigby.  An exclusion order was issued against them on grounds of public order, of which they sought judicial review. This was their appeal against the Immigration Tribunal’s refusal to allow them to proceed with the judicial review claim.
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Cracking intercepts: the war on terror and difficulties with Human Rights

11 December 2014 by Rosalind English

TheImitationGame-BCLiberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-,  5 December 2014 – read judgment

Robert Seabrook QC is on the panel of the IPT and  David Manknell of 1 Crown Office acted as Counsel to the Tribunal  in this case. They have nothing to do with the writing of this post.

This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character.
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Government may weigh rights against national security without courts’ interference

12 November 2014 by Rosalind English

Mujahedin-e-Khalq-OrganizatR (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2014] UKSC 60 – read judgment

The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).

At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.

The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment.
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“What’s in a name”? Privacy and anonymous speech on the Internet

1 October 2014 by Rosalind English

internet-anonymityKeynote speech by Lord Neuberger at 5 RB Conference on the Internet, 30 September 2014

The President of the Supreme Court has delivered a very interesting address on the protections that should be afforded to what might be termed the “new Fourth Estate” – journalism on the internet. The following summary does not do justice to his speech but is meant to act as a taster – download the full text of his talk here.

Lord Neuberger explores the interrelationship of privacy and freedom of expression, particularly in the light of developments in IT, and especially the internet. He recalls a colourful eighteenth century figure who contributed a series of letters to a widely disseminated journal under the pseudonym of “Junius”. He managed to make such effective attacks on public figures he brought about the resignation of the Prime Minister, the Duke of Grafton, in 1770. Because of his anonymity this character was able to make criticisms of the powerful for which others of his time faced prosecution.

Junius offered a voice of firm if sometimes scurrilous criticism, prompting both political and legal change. He is rightly remembered as one of the greatest political writers in an age dominated by great figures, yet his identity [still]  remains a mystery.

And it is this lack of traceability that links Junius with today’s bloggers. Print journalists are – with the exception of writers for The Economist – known figures. But forty percent of the world’s population use the internet, and despite initial expectations that bloggers and tweeters could hide behind pseudonyms, it has turned out to be extremely difficult for internet writers to maintain their anonymity. The public and the courts increasingly recognise the press’ interest in publishing the names of individuals in appropriate circumstances.
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When does a righteous campaign shade into harassment?

30 September 2014 by Rosalind English

Chessington_World_of_Adventures_Kobra2Merlin Entertainments LPC,  Chessington World of Adventures Operations and others v Peter Cave [2014] EWHC 3036 (QB)  25 September 2014 – read judgment 

This case explores the extent to which a campaign of criticism, conducted by internet and email, can merit restraint by the civil courts. As the judge says, whatever the aims of the campaign in question, its supporters may, in the course of their activities, annoy, irritate, and upset companies and individuals.  But should the courts interfere, before the question whether the campaign is justified has been decided?  And to what extent is such a campaign a criminal offence?

This particular dispute concerned a series of communications by the defendant to the general public about the inadequacy of safety measures and other shortcomings of the claimants’ amusement parks. The claimants contended that Dr Cave’s communications with the public and with their employees were defamatory, and in breach of confidence, and that they were thereby entitled to stop him, before any trial, by relying on the statutory tort of harassment. They therefore applied for an interim injunction restraining the defendant from setting up websites and sending mass emails regarding the issue of safety in theme parks. The question before the judge was whether they should wait until they had established defamation and/or breach of confidence, before the court granted a remedy.
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