Weekly Notes: legal news from ICLR – 12 February
Posted on 15th Feb 2016 in Weekly Notes
This week’s roundup of legal news and comment includes a new approach to prisons, notes and queries on court reporting, two legal issues on internet links and the end of the Indy.
Prime Minister outlines plan for reform of prisons
On 8 February David Cameron spoke at the Policy Exchange on prison reform including plans to give governors complete control over the way they run their prisons. You can read the text of his speech here. Salient points included that hope that prisons could become places of rehabilitation, offering those who wanted to turn their lives around the opportunity to do so. However, he seemed to put this in the language of a city dinner or accountancy balance sheet (emphasis added):
“In short: we need a prison system that doesn’t see prisoners as simply liabilities to be managed, but instead as potential assets to be harnessed.”
That’s not to say he used this sort of language throughout. He came up with a good phrase (or his speechwriter did) when he said:
“For years, education was set back by the soft bigotry of low expectations – the idea that the most disadvantaged children shouldn’t be expected to achieve the best results.”
The soft bigotry of low expectations. Yes, that could be something that applies to prisons too – and perhaps other areas, like post-colonial foreign relations, or even the question of addressing the human rights records of countries to whom we enthusiastically sell arms? (Headmaster’s report: “could try harder”.)
Later on he got back to the language of the balance sheet: he said he thought
“politicians from all sides of the political spectrum are starting to realise the diminishing returns from ever higher levels of incarceration” and “simply warehousing ever more prisoners is not financially sustainable, nor is it necessarily the most cost-effective way of cutting crime”.
Then, after several fairly legato sentences, he brought his audience up short with a display of staccato notes:
“Prisons … are often miserable, painful environments. Isolation. Mental anguish. Idleness. Bullying. Self-harm. Violence. Suicide. These aren’t happy places.”
Then, with a flourish, he was back in the House of Commons, facing a leader of the opposition who is no longer there, with a riposte that is probably long past its adversarial shelf-life:
“Think about it this way: being tough on criminals is not always the same thing as being tough on crime.”
But this is political speech making, a mechanism for delivering hints about policy and soundbites for media reproduction. It’s not an essay and probably rather unfair to pick over it as though it were.
More importantly, we sense the policy drive (and perhaps even some of the phrasemaking?) comes from the man most likely to be tasked with its delivery, the Secretary of State for Justice (and also Lord Chancellor) Michael Gove, who has himself spoken out about the prison system and his vision for the future. Cameron said himself (in his speech) that “Michael Gove is just the man for the job”. We shall see.
Three stories this week that illustrate the pitfalls, for non-lawyers, of attending and reporting what goes on in court.
(1) Secrets and lies
The Spectator recently published an article about child protection headlined “Beware the baby-snatchers“. As this title might suggest, it was not an evenly balanced piece. Indeed, it displayed many of the all-too-familiar tropes about “secret” hearings in the family justice system and social workers hell bent on destroying families. It also displayed some ignorance about what actually goes on in court, suggesting that the Spectator might not have availed itself of the opportunity to send an accredited journalist to cover private (not secret) hearings involving children in the family courts. If you belong to the NUJ or work for the BBC, ITV, Sky or one of a number of other recognised media orgs, then this involves no more of a faff than applying to the UK Press Card Authority for accreditation. This has been the case since 2009, and in response to the promptings of Sir Nicholas Wall and Sir James Munby as successive Presidents of the Family Division, the judgments given in private hearings have increasingly been available on BAILII. (And there are hundreds of them there now, publicly accessible to anyone with a search engine and a bit of patience. If you want freedom of information, there it is in spades.) So there’s really no excuse for not getting at least a general picture of what goes on, instead of relying on the necessarily partial reports of disgruntled litigants and campaign groups – which sometimes seems to be the media’s preferred route to a good story.
The article prompted two responses on the Transparency Project blog, which demystifies and demythologises family justice:
- Secrets and lies – the lazy cliches that stand in the way of proper court reporting
- ‘Baby-snatchers’ and post-natal depression – update (which takes issue with the content of the piece itself).
(2) Notes and queries
Where the hearing is in open court (ie not in private, or as the papers will insist on calling it, secret) then the rule is quite straightforward. Anyone can attend and, though it appeared to be a matter of some doubt, anyone can take notes. This was the subject of case on which the Divisional Court (of Queen’s Bench) has now given a clear answer.
The confusion came when a man named Ewing attended a case of a man named Kirk in the Crown Court and began taking a note. The judge said anyone wishing to take notes should ask permission first, which he granted to a person assisting (as a McKenzie friend) the litigant who was acting in person. Ewing disputed this and the Divisional Court agreed with him: permission is not needed to take notes in court. You can read the full judgment in Regina (Ewing) v Crown Court at Cardiff and Newport  EWHC 183 (Admin) (via BAILII) and ICLR reporter’s case summary here  WLR(D) 62.
And there’s a case comment by media barrister Hugh Tomlinson QC on this blog.
Following this, there was a discussion on Twitter about whether the right or liberty to take notes includes taking notes with a mechanical device, such as laptop or mobile phone. This is more tricky, because such devices invariably enable other functions to be performed, and unless put into “flight mode” are almost bound to make some form of text-based communication whilst being used (eg automatically checking email). The making of a visual recording is forbidden and sound recording require specific permission from the court each time; but text-based communications (including tweeting) are routinely permitted for accredited reporters (see story above) and, with the court’s permission, for anyone else. That brings us back to the question of permission. I suspect the Divisional Court’s attention was not focussed on anything other than the use of pen or pencil, and the best option might be for the Master of the Rolls (if he has a minute) or the Lord Chief Justice (ditto), to issue a practice direction, as was done in the case of tweeting and other “live text-based communications” (or to revise that one): see Criminal Practice Direction 2015 Amendment No 3  EWCA Crim 430; sub nom Practice Direction (Criminal Proceedings: Various Amendments)  1 WLR 1643, at Part 6C, itself based on Practice Guidance (Court Proceedings: Live Text-based Communications) (No 2)  1 WLR 12;  1 Cr App R 288.
(3) Secrets and trials
We know the name: Erol Incedal. And we know that he was on trial at the Central Criminal Court for terrorism offences. He was acquitted on the main charges but convicted of one relating to possession of a bomb-making manual on a memory card. However, unlike most criminal trials, this one was not held in open court throughout. Because of the risk of inhibiting the proper administration of justice by reason of the secret nature of some of the evidence (for reasons of national security), the bulk of the trial was held “in camera”, ie closed to the public and press. However a relaxation was permitted (following an appeal by media organisations to the Court of Appeal: see Guardian News And Media Ltd v Incedal  EWCA Crim 1861) according to which a number of accredited journalists were allowed to attend, effectively rendering the hearing “in private” in a similar way to many family court hearings, but with this unique twist: they were allowed to take notes, but they were not allowed to take their notebooks away or to report anything of what they’d seen and heard – on pain of prosecution. Their presence was simply as a guarantee that justice was being seen to be done. In addition, the Court of Appeal ordered that the defendant’s name should not be anonymised, as to do so, in combination with a hearing in camera, would be a step too far in suspension of the open justice principle.
Following the conclusion of the trial, the media groups argued that there were no longer any good reasons to prevent them reporting what they had covered. But this week the Court of Appeal disagreed and continued the restrictions (for the foreseeable future), saying the nature of the evidence was such that a departure from the principle of open justice was still justified: Guardian News And Media Ltd v R. & Incedal  EWCA Crim 11.
In literary terms, the case illustrates the difficulty when the worlds of Horace Rumpole (of the Bailey) and George Smiley (of the Circus) collide.
- Guardian, Erol Incedal trial: media groups lose appeal over reporting restrictions
- Inforrm’s blog, News: Court of Appeal dismisses Media’s “Terror Trial” secrecy appeal and The implications of Incedal: managing the new normal in national security cases – Lawrence McNamara.
Legality of hyperlinks to infringing content
The European Court of Justice has been asked to consider whether every hyperlink in a Web page should be checked for potentially linking to material that infringes copyright, before it can be used. The request for a preliminary ruling has been made by the Hoge Raad der Nederlanden (Netherlands) in the case of GS Media BV v Sanoma Media Netherlands BV (Case C-160/15) and refers, inter alia, the question
If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 [on the harmonisation of certain aspects of copyright and related rights in the information society]
In an earlier ruling, in the case of Svensson v Retriever Sverige AB (Case C-466/12);  Bus LR 259;  WLR (D) 67, the court held that the provision on a website of hyperlinks to works freely available on another website did not constitute an “act of communication to the public” capable of infringing copyright in the linked-to content.
The question left open, and now in issue, is what happens where the linked-to material has been published in breach of copyright (“without the consent of the rightholder”). Can the provision of the link constitute a further infringing communication? To put it colloquially, does linking to pirated copy make you a pirate as well?
If so, we may need to get ready for another massively tiresome disruption (not in a good sense) to internet browsing experience as each page of a website, or at least its first visited page, presents the user with a dismissable popup, reminding them of the copyright status of the page, a permissions category and a declaration of any right to link to or reproduce its contents. This will be extremely tiresome, no doubt, like the cookie warning popup on many sites. For many, a link is a bit like a footnote: it shows you’ve researched something and identified the source, and haven’t just made it up. It’s also a form of hat tip to the person or org that actually did the legwork on a story. There must be some way of distinguishing between helpful links like those, and links which are essentially facilitating the re-use of infringing material.
How did we get here? Ars Technica, on its Law and Disorder section, explains the background, with further links:
The Disruptive Competition Project has a good summary of the facts of the GS Media saga: “The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them.” The details of how the case finally arrived at the CJEU are complicated, and explained well in a long post on the EU Law Radar blog.
It only remains to declare that we have linked to these resources in the utmost good faith believing no copyright has been infringed in doing so. Given that the article is accompanied by social media sharing buttons, one assumes they would welcome an inward link (as do we, on this blog; better still a tweet to announce the fact).
Google gets frugal
… and not just with taxes. To comply with European data protection laws the search engine will start scrubbing search results across all its websites when accessed from any EU country, not just on its domains catering to that country. This is in order to comply better with the decision of the European Court of Justice in the Google Spain case in 2014, requiring the search engine to implement the so-called “right to be forgotten”. That ruling allows EU residents to request the removal of search results that they feel link to outdated or irrelevant information about themselves on a country-by-country basis. Hitherto Google has complied only in relation to searches performed using its European domains, not searches performed within Europe using US or worldwide domains.
Journalism and law
It was – were you?
Time now to shed, if I may, a personal tear over the demise of the print edition of the Independent, for which I worked for a decade, contributing daily law reports, plus the occasional law piece, book review, and even a couple of obituaries. Like many of the journalists who joined what was in 1986 a daring new venture, facilitated by new computer technology and the miracle of “desk top publishing”, I was poached from another paper – in my case The Times. (I was also working for ICLR.) I joined with two other ICLR reporters similarly headhunted, Ying Hui Tan (Mrs Tony Scrivener QC) and Simon Cassell.
The Indy had decided that one of the areas on which it would compete with the other qualities was in running a daily law report. The Times has had law reports since the late 18th century, though not in the format we’d currently understand as a law report citable in court until rather more recently; and the Financial Times was then still running its commercial law reports written by Rachel Davies (also ex-ICLR as it happens). After the Indy launched, both the Guardian and the Daily Telegraph decided to launch their own law reporting service. It was actually a rather marvellous time of opportunity for law reporters – for a while. The Guardian ran law reports for a number of years, employing another ICLR reporter, Shirani Herbert, to write them. She and I have both now returned to the ICLR fold. The Telegraph was less committed to the idea and I don’t think they published as much or as often.
The boom did not last, and one by one the other newspapers ceased providing daily or even weekly law report coverage, leaving the Times, as it remains, after more than two centuries, in command of the field. No doubt the internet, instant availability of the full judgment on BAILII, and the production by ICLR and other publishers of overnight case summaries, such as the WLR Daily service on this website, have largely replaced the need for up to date newspaper coverage. For The Times, of course, it is only part of the coverage and commentary which it now provides both in the paper itself (on paper and online) and in its daily email newsletter The Brief, of which we are avid readers. I will miss the Independent, but times have changed and even The Times has changed.
Things ain’t what they used to be – and Twitter has replaced the daily pint in a Fleet Street pub as the shortest way to the gossip of the day. But that’s another story.
First trans woman appointed judge
Pink News reports with justifiable satisfaction that
“A trans woman has quietly become the first to be appointed as a leading judge in the High Court. Dr Victoria McCloud has been appointed as the most senior out trans public figure as a Master in the High Court”
citing a story in the Mail on Sunday, of all places. The Mail story is refreshingly positive, but is let down by a massive picture of an inappropriate gavel.
AALL will not be renamed ALI
The American Association of Law Libraries, whose annual conferences or courses ICLR has recently taken to attending, recently polled its members on the question whether they should change the org’s name to Association of Legal Information. Answer came there plenty, and most of it said no. By more than 80 per cent. Full story: 3 Geeks and a Law Blog.
BIALL student award
The British and Irish Association of Law Librarians is inviting submissions for its student award which was established in 2009 with the aim of recognising and encouraging new entrants to the profession. The submission deadline is March 25th. Click here for full details.
Law (and injustice) from around the world
Inquiry into Italian student’s death
The fate of an Italian post-graduate student doing research into trade union activities in Egypt, whose apparently tortured body was discovered in Cairo earlier this month, is being investigated by investigators from Italy, with the cooperation of the Egyptian authorities. In a letter published in The Guardian, more than 4,600 academics from across the globe protested against the death of Giulio Regeni, a Cambridge PhD student from Italy, and demanded an investigation into the growing number of forced disappearances in Egypt. Regeni went missing on 25 January and his body was only discovered nine days later, with signs of injuries from torture. His disappearance occurred on the fifth anniversary of Egypt’s revolution, during what was perceived as a security crackdown.
Source: The Guardian
See also: New York Times, Death of Student, Giulio Regeni, Highlights Perils for Egyptians, Too (which makes the point that Regeni’s fate mirrors that of many Egyptians who have also disappeared, or been disappeared, during what looks like an increasingly savage security crackdown).
Country declares itself an “Islamic republic”
Following the example set by Mauritania, The Gambia has announced that it, too, will henceforth be an Islamic state. The announcement was made by the president of the tiny west African nation, Yahya Jammeh, on December 11th, according to a report last month in The Economist, which points out that although 90% of Gambians are Muslim it retains a secular constitution, ratified in 1996. Details of the change remain hazy, the Economist says:
It is not clear, for instance, whether Mr Jammeh intends to implement fully-fledged sharia (Islamic law), as he was rumoured to be planning in the early 2000s, or whether he plans to put the issue to a referendum.
The report notes that the economy is in dire straits, EU investment has been suspended because of human rights abuses, Western tourism has evaporated, and so the move is probably a ploy to get the approval of, and investment from, the Arab gulf states, such as Kuwait, Qatar and Bahrain.
Petition for release of jailed poet
On 25 February English PEN join Amnesty Gulf, Freedom Now and PEN International will be presenting a petition for the release of well-known poet Mohammed Al-Ajami, known as Ibn al-Dheeb, four years after he was arrested for reciting a poem critical of Qatar’s ruling family.
Donald Trump sued for libel in London
A claim has been filed in London alleging that Donald Trump, the outspoken Republican presidential candidate, published a defamatory statement when he said that parts of London were “no-go” areas for the police. The claimant, in what Inforrm’s blog called an “enterprising and imaginative claim” for £10m in damages for defamation, is a Mr Kamran Malik, also described as a “persistent litigant”. ITV News quoted Mr Malik as saying that Mr Trump’s “careless and negligent comments” had the potential to “affect the trust and confidence that (local Muslims) have built with their non-Muslim friends and business partners”. On 10 February 2016, Dove J dismissed an application by the claimant for an ex parte order banning Donald Trump from entering the United Kingdom. There was a story about the case in the Guardian. An application for permission to serve the defamation proceedings on Mr Trump in New York has been adjourned till 19 Feb.
That’s it for this week. Thank you for following ICLR on Twitter, Facebook, LindedIn and this blog.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.