Weekly Notes: legal news from ICLR – 20 March 2015
Posted on 20th Mar 2015 in Weekly Notes
This week’s compilation of legal news and events includes secrets and lies, a hidden camera in case, a stay out of jail card, an investigator under investigation and a tax on snippets of news. If it leaves you no wiser, you may at least be better informed.
UPDATED 23 March
Penal reformer’s prison visit banned
Was it revenge for prisoner books ban campaign?
Frances Crook, the chief executive of the Howard League for Penal Reform, which naturally enough takes an interest in prisons and the conditions therein, was refused permission by NOMS (the National Offender Management Service, part of the Ministry of Justice), to accept an invitation extended by G4S as the private manager (indeed proud manager in this instance) of prisons at Oakwood and Birmingham.
The letter, which was tweeted by Crook herself, evidently somewhat taken aback by the rebuff, and retweeted thousands of times by others sharing her bafflement and concern, is reproduced in full on the Jack of Kent blog, where it is described as “disgraceful”.
In response to the twitter storm, G4S themselves tweeted to the effect that they were proud of their work at the two prisons and happy for the visits to go ahead. The reason given by the NOMS official who penned the letter was that the prisons had already been officially visited and in the light of comments Crook had previously made about privately run prisons, “I do not feel your visit would be appropriate at this time”.
Jack of Kent links this refusal to a wider resistance to scrutiny of UK prisons, as manifested in a refusal to allow journalists to visit, adding
Authoritarian politicians are fond of stating that if someone has nothing to hide they have nothing to fear. If that is so, then what do those same politicians have to fear from opening up the prisons to proper inspection and investigation?
If I may be allowed to speculate , I wonder if it might also have to do with the extremely successful campaign which Frances Crook spearheaded, against the so-called “Prisoner Book Ban” last year, in reality a ban on the sending of books in parcels to prisons, which was ruled unlawful in judicial review proceedings in the case of Regina (Gordon-Jones) v Secretary of State for Justice  EWHC 3997 (Admin). (See Weekly Notes, 5 December 2014.)
Crook’s blog (Why has Grayling banned prisoners being sent books?) , launching the campaign, was published almost exactly a year ago, on 23 March 2014. The letter from NOMS dated 20 March would appear to be a nicely timed anniversary tit-for-tat. Still, one can hardly believe the MoJ would be so petty.
Secrets and lies
CSA v OSA
The historic child sex abuse inquiry, having finally got its chair and membership sorted out, has run into a fresh difficulty: the Official Secrets Act*. This would prevent anyone who, whilst in public service, had signed the Act (strictly speaking a statement based on the Act) disclosing something to the inquiry if it related to national security.
(*The principal Act is that of 1911, as amended by Acts of 1920 and 1989.)
Duncan Campbell, in the Guardian, discusses allegations (first aired on BBC Newsnight) that detectives who had evidence of child sex abuse against the late Cyril Smith MP and others, had been warned off the case by the threat of prosecution under the Act.
Exaro News reports that although the Home Secretary, Theresa May, and Prime Minister, David Cameron, repeated assurances last week that the OSA would not preclude anyone giving evidence to the inquiry, a move (by John Mann, Labour MP) to amend the Act to enshrine such an assurance in law was blocked in a late night vote last month.
But why, you may ask, would the sexual abuse of children have anything to do with national security? The answer is not as far fetched as you might suppose, though it may be easier to believe in the context of a spy novel than in real life.
Some of the allegations which have given rise to this issue concern the Kinkora Boys Home in Northern Ireland. According to Amnesty International:
Allegations have persisted that paedophilia at Kincora was linked to the British intelligence services, with claims that visitors to the home included members of the military, politicians and civil servants, and that police investigations into abuse at Kincora were blocked by the Ministry of Defence and MI5.
It’s also claimed that
MI5 turned a blind eye to child abuse and actively blocked a police investigation, instead using the paedophile ring for its own intelligence-gathering purposes.
It’s that phrase “intelligence-gathering purposes” that I want to concentrate on. It conjures up speculation about a murky world in which, for example, foreign agents might be filmed in compromising circumstances and then blackmailed into “turning” (ie becoming double-agents). This may sound like the stuff of fiction (eg John le Carre’s Smiley’s People, which is based on a sex scandal blackmail set up) but it also indicates the potential justification for keeping things under wraps. At any rate, there might need to be some sort of protection for those giving evidence and for those whose identities might be disclosed in the course of such evidence.
It’s one thing to blow a whistle on the disgraceful exploitation of vulnerable people. It’s another to blow the cover of agents who may still be serving in the field, however dim a view you may take of their willingness or requirement to do so. An agent whose cover is blown is not necessarily the only person whose life is at risk: they may be running a network, all of whose members could in turn be at risk.
The idea that official secrecy might serve some beneficial purpose is unfashionable in the age of Wikileaks and CitizenFour, but it is at any rate a realistic one. The world of moral compromises, as depicted in fiction, has sometimes been called Greeneland (after the novels of Graham Greene). Its existence is an acknowledgement that almost anyone, given the power and opportunity, can end up compromising their moral integrity in one way or another, officially or unofficially.
Perhaps the Official Secrets Act is no more than a legislative licence to lie, or to fail to tell the whole truth. It is often relied upon for the silliest reasons, as well as for the most sinister. I’m not defending its misuse or overuse. It also has what you might call a Rumsfeldian effect, in that it means you never know what you don’t know.
Despite all that, or in some ways because of it, the issue it isn’t always as simple as it may seem. So Amnesty’s comment that
“The focus [of the inquiry] must be the protection of children, rather than officials and their dirty secrets”
is possibly – just possibly – a little simplistic.
Secrets and flies (on the wall)
Human Rights court defends use of hidden camera technique
Commenting on a judgment given last month, Haldimann and Others v. Switzerland (no. 21830/09) 24 February 2015, a guest post on the Strasbourg Observers blog remarks that the majority decision backing the use by watchdog journalists of hidden cameras to expose the malpractice of professionals was the first in which the person filmed was targeted as a representative of a particular profession rather than in a personal capacity.
The journalists involved in the case had been convicted and fined for violating their target’s privacy by means of a recording device. The Federal Court upheld the convictions on the ground that the journalists could have used different (less intrusive) methods.
The European Court of Human Rights recognised that although the targeted professional was not a public figure, the documentary being made was not intended to critcise him personally but to expose practices which were a matter of public interest.
Flutura Kusari, Ph.D. researcher at the Human Rights Centre of Ghent University, and Nani Jansen, Legal Director of the Media Legal Defence Initiative noted that
The safeguard afforded by Article 10 to journalists reporting on matters of public interest is subject to the condition that they are acting in good faith, in accordance with the ethics of journalism and have a sufficient factual basis for their reporting.
Until now, conducting interviews with the use of hidden cameras, a technique used mainly in undercover journalism, was considered unsafe due to the litigation risk. The ECtHR decision has made it safer for journalists to use hidden cameras, provided that certain criteria are fulfilled. However, the case has been determined based on particular elements and it is not clear whether the ECtHR would support the use of hidden cameras if there were alternative methods to obtain the information.
The judgment (given in French) does not appear to be available in English yet.
Legal Services Consumer Panel
What exactly is it for?
Commentators in the legal press have been questioning the usefulness of the Legal Services Consumer Panel, which reports to the uber-regulator, the Legal Services Board, in the light of its deafening silence on issues (such as the massive hike in court fees) which might really affect the consumers of legal services whose interests it is supposed to protect, instead issuing reports and opinions on matters of little practical value to consumers, but merely serving to wind up the legal professions.
Examples of the latter include its suggestion last month that lawyers should not threaten to sue “reviewers” of legal services for posting defamatory criticism (see Weekly Notes 20 February ), which was followed almost immediately by a judgment of the High Court awarding a law firm substantial damages in respect of a defamatory negative review (see The Bussey Law Firm v Page  EWHC 563 (QB) ); and, only this week, a report from the LSCP suggesting that the title of Queen’s Counsel should not be confined to barristers and solicitors. Diversity among QCs is poor, apparently, and the cost of applying might be putting off some of the more gifted applicants, it was suggested. Given that taking silk generally ensures somewhat higher fee earnings, the £2,160 cost of applying seems relatively modest.
Compare this to the £10,000 in court fees which an injured claimant or small business might have to pay, upfront, under the latest hike imposed by the MOJ for civil claims, or the decimation of legal aid for unmoneyed and vulnerable litigants, about which not a squeak from the LSCP, and you can see why the Law Society Gazette calls the Panel a “muzzled watchdog” which is facing a “crisis of legitimacy”.
The explanation, of course, is that under the terms of its establishment the panel – a creature of the Legal Services Act – is operating with two arms and a leg tied behind its back. …
We sympathise. But it’s hardly satisfactory when an organisation set up to represent the ‘interests of users of legal services’ (who explicitly include the small businesses most affected by court fee hikes) must stay silent about the market upheavals that most affect those users.
The question really is whether the frivolous window-dressing activity of the Panel is merely serving to distract public attention from some of the more controversial activities of the Legal Services Board, with divisive policies like QASA and the less than overwhelming introduction of Alternative Business Structures under the Legal Services Act 2007 which created the LSB, or whether there is something even more sinister going on. Like the wholesale destruction of the legal professions. Fanciful? Don’t be so sure.
At any rate, I shall be looking very carefully at whatever the Legal Services Consumer Panel says on 1 April this year, in case it isn’t, after all, meant to be a joke.
The following articles and blog posts are recommended reading:
Carl Gardner, on Independent Voices: Why do MPs keep suggesting anonymity for rape suspects?
Paul Bernal, A shout out for the Open Rights Group (marking #DigitalRightsmatter day on 19 March)
Jade Rigby (Keep Calm Talk Law), Is HSBC too big to prosecute? (including a primer on tax evasion and the law)
Joshua Rozenberg (Gazette), Legacy of a Law Lord Chancellor (and will he keep his job?)
The Lawyer European Awards 2015
The Lawyer magazine’s annual awards to recognize Euroepan law firms in various categories were announced at a ceremony held in London recently. For a full list of winners, see The Lawyer.
We were alerted to this by Turkish law firm, Kolcuoglu Demirkan Kocakli Attorneys at Law, who seem to have me on their mailing list, and were the no doubt well deserved winners this year of the Turkish Law Firm of the Year category.
The Lawyer Awards 2015
Nominations for the domestic awards closed on 11 March and there will be an awards ceremony on 23 June. The categories include Barrister and Chambers of the Year as well as various prizes for Solicitors’ firms, in-house lawyers, and a speciall category (which I rather like) called “Ethical Initiative of the Year” (which includes but is not confined to pro bono projects). Full details, The Lawyer.
Bar Council: documents disclosed to counsel by mistake
The Bar Council has issued what it stresses is not “guidance” for the purposes of the Bar Standards Board handbook but has merely been prepared by the Bar Council to assist barristers on matters of professional conduct and ethics.
Nonetheless, it may be useful. Para 2 says:
If you realise that you have received such documents by mistake you should not read them (or not read them any further) and should return them.
But if you do read them (by mistake) you may come under a duty of confidentiality which, if it conflicts with your existing duty to your client, may require you to dispossess yourself of instructions.
The update or reminder or whatever (which is not guidance) points out the issues and the relevant paragraphs or sections of the BSB handbook dealing with them.
An example of a document disclosed by mistake was tweeted shortly after the tweet from the Bar Council announcing the above. It relates to a politician canvassing in Camden recently, who mistakenly posted through someone’s letterbox a leaftlet on which he had been jotting his record of householders’ voting intentions (with some acerbic comments). Read about it in the blog of the deputy editor of the Camden New Journal.
Law (and injustice) around the world
Anti-corruption chief arrested for corruption
Horia Georgescu has resigned as director of Romania’s EU-backed National Integrity Agency after being arrested by police investigating a possible property scam, according to a report in the Telegraph:
Classified as one of the EU’s most corrupt states, Romania has come under intense pressure from Brussels to crack down on a problem that has bedevilled it since the fall of communism in 1989, and undermined the credibility of state and public institutions.
The country is still subject to special monitoring by the European Commission to check its progress in the fight in against corruption.
Mr Georgescu’ s lawyers said he had resigned because he wanted to avoid the agency’s reputation being tarnished by the investigation. They also stated their client was innocent of any crime.
Effect of “google tax” debatable
As reported in Weekly Notes – 9 November 2014, Spain recently introduced a legal amendment whereby news aggregators, such as Google News, which reproduced snippets of content from publishers, were required to pay a fee. In response to what was nicknamed the “google tax”, though it applied to any onlne news aggregating snippet-reproducing service, Google News simply stopped aggregating news from Spanish publishers. (Weekly Notes – 15 December 2014)
But has it really made all that much difference? In a guest post on the IPKat blog, Míchel Olmedo Cuevas asks: Did the “Google Tax” really change the market?
It seems that Spanish newspapers did suffer a small loss of traffic to their sites, but not nearly as much as was expected, and less than had occurred when Germany passed a similar law (but with an opt-out clause). The experience in Germany indicated that a lot of traffic to the newspapers was actually generated by or originated from its aggregation on Google News.
I’d like to think our own little efforts at aggregating interesting legal stories by way of snippets and rehashings are mutually beneficial to their source publishers as well as our readers. Still, who knows, one may well be whistling in the park. (No tax was paid in the compilation of this item. But hat tip and kudos to IPKat, the coolest cats in the IP commentary zone.)
Oklahoma bans godless matrimony
A bill that would restrict the right to marry to people of faith and require all marriage licences to be approved by a member of clergy was approved by the Republican-dominated Oklahoma state House last week, and is now awaiting consideration by the state Senate, reports the Independent.
Marriage was not instituted by government. It was instituted by God. There is no reason for Oklahoma or any state to be involved in marriage,” said one of the bill’s Republican supporters Rep. Dennis Johnson.
Mixing opinion with what might otherwise be understood as a piece of reportage, the Indy’s correspondent Christopher Hooton, adds:
I’m actually inclined to agree with him despite being an atheist myself. Marriage is interwoven with religion and I’d sooner see secular people reject it and come up with their own commitments, though admittedly I’d rather we came to that realisation naturally than where forced into it by Republicans.
It seems this bill isn’t fuelled by a desire to segregate atheists however but is a thinly-veiled attack on gay marriage. By restricting the issuing of marriage licenses to the clergy and not judges and court clerks, the bill would make it harder for same-sex marriages to take place.
That’s it for now. Enjoy the week ahead, and don’t forget to check out our weekly Case Law Updates. Click here for last week’s alert.
Don’t forget, either, to vote in our 150 Years of Case Law on Trial poll, about to commence its second period, from 1915 to 1945. Jazz age flappers, suffragettes, fascism and communism – it was a period of social and political turbulence, bounded by two world wars. And in the courts, a number of landmark cases which still resonate to this day.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.