Weekly Notes: legal news from ICLR – 13 June 2014
Posted on 13th Jun 2014 in Weekly Notes
A selection of topical legal news from the UK and around the world, including secret trials and not-so-secret tribulations, not forgetting google and some end of term reports from courts and regulators, with a sprinkling of alphabetical acronyms.
This blog has been updated with new links as at 23 June 2014.
Open justice and closed hearings
As we reported last week, for the first time in English legal history a judge had ordered the trial of two alleged terrorists, identified only as AB and CD, to be conducted entirely in secret. The order was made by Mr Justice Nicol, who on 19 May ruled that the defendants should be anonymised, that the entirety of their trial should be in private (ie with public and media excluded) and that there should be no publication of any reports of the trial or, until it was over, of the hearing leading to this order.
The appeal against that order was brought by the Guardian and other media organisations and was treated by the Court of Appeal (Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett) as a rehearing rather than a review. In other words they reconsidered the matter. They gave their decision on 12 June, in a brief judgment (the matter being urgent with a trial due to commence in a few days) but have indicated they will provide fuller reasons in due course.
They began with a trenchant reaffirmation of the virtues of open justice:
The Rule of Law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law – both a hallmark and a safeguard – is open justice, which includes criminal trials being held in public and the publication of the names of defendants. Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system; exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced.
No one could dispute that and no one did. The problem for the prosecuting authorities and the security agencies was that the risk to national security posed by a public hearing of any part of the trial, because of what might be revealed, might be such as to frustrate the administration of justice, because the prosecuting authorities would decide or be persuaded not to continue.
The Court of Appeal decided that, instead, the core of the trial would be heard in camera, but that certain peripheral parts of the trial could be heard in open court, including:
- The swearing in of the jury
- Reading the charges to the jury
- Part of the judge’s introductory remarks to the jury
- Part of the prosecution opening
- The verdicts
- In the event of any convictions, the sentencing.
However, the court decided that the defendants could be named, saying they found it difficult to conceive of a situation in which the cumulative effect of (a) holding a trial in camera and (b) concealing the identity of who was being tried, could be justified.
As several commentators have been quick to point out, Nicol J is also co-author of a textbook, Robertson & Nicol on Media Law, 5th ed (page 472-3), which states, with regard to private hearings, that a judge “should be alert to the importance of adjourning into open court as soon as it is apparent that it is not necessary to exclude the public.”
In a rather interesting new development, the court also proposed arrangements for a limited number of reporters to be “accredited” to attend and take notes, but not take away those notes until the end of the trial, and for a transcript of the proceedings to be made, with the question of any publication reserved for further order.
Presumably, this is aimed at ensuring that in the absence of contemporaneous sunlight on the proceedings, there is at least a rechargeable torchlight, guaranteeing a degree of public scrutiny, albeit at one remove, and possibly only exercisable after the dust (or some sort of 30-year rule) has settled. There is also, perhaps, some scope (in extremis) for whistleblowing – a sort of safety valve – though one would hope the judge or lawyers involved would also blow a whistle if something unconscionable happened, and/or the jurors, of course (if there are any: you sort of wonder how things might go these days). That said, this underlines the risk of involving something like the PDS (public defender service) – the perception of bias is bad enough – in a case like this. Independent representation is (must be) essential.
For more commentary, see
- a post by Merry Neal on the Keep Calm Talk Law blog, The Semi-Secret Terror Trial – A Leap of Faith in the Judiciary.
- a post by Nick Cohen in the Guardian, Secret justice will lead to paranoia – and it’s not very British
Google prepares to be frugal
The idea of google going on some sort of information diet seems bizarre, but it seems they might have to in order to comply with the Grand Court of the Court of Justice of the European Union’s decision last month in Google Spain SL v Agencia Española de Protección de Datos (AEPD) (Case C-131/12) that it must cease to digest indexed data about individuals which is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purpose of the [data] processing at issue”.
The justification for the ruling was primarily under existing EU data protection law, rather than the somewhat vague concept of the “right to be forgotten” – which is the label that’s nevertheless been applied to the case – a right which is apparently being exercised by tens of thousands of applicants using a new form set up by google for the purpose.
- For a well informed analysis, read Joshua Rozenberg’s piece in the Guardian (Google shows good faith but those wanting to be forgotten must wait) or listen to his recent report for BBC Law in Action.
- See also, via The Drum, in Australia, this discussion on the idea of the “duty to forget” which is implied in the idea of a right to be forgotten:The internet never forgets, but it could forgive.
- New link: more recently Mark B Taugerm, in a thoughtful essay on the History News Network, has asked Should Historians Be Worried that Europeans Now Have “The Right to Be Forgotten” ?
As noted above, google has now set up a form to enable people to request the removal of data about themselves from search results (NOT from the original web page from which the result is derived: they must apply to the publisher of that page directly). Google will consider each case on its merits.
For those expecting instant results, it warns:
We’re working to finalise our implementation of removal requests under European data protection law as soon as possible. In the meantime, please fill out the form below and we will notify you when we start processing your request. We appreciate your patience.
If google suppresses information following a takedown request, it will also, apparently, record the fact in the results, as it does for requests under the US Digital Millennium Copyright Act, according to Search Engine Land.
There have been some fairly hysterical reports about criminals, paedophiles and other miscreants using the form to rinse off their online disreputability. The fact that claims may be made unmeritoriously does not seem like a good reason to prevent anyone at all from making them. But perhaps the sour reaction from much of the trad media is only to be expected, for (as the Leveson Inquiry confirmed) they are themselves no strangers to the peddling of “inadequate, irrelevant or excessive” details about individuals.
Moreover, even Larry Page, CEO of google, admitted that the company already deals with takedown requests in relation to links to child abuse material and copyright infringing content. And frankly, if google can map the world and film every street for an online app, you’d think erasing a few annoyingly incorrect or out of date references to individuals would not be such a big deal for them. It’s no different from a newspaper being asked to correct an inaccurate story, or Wikipedia allowing person B to come along and update what person A wrote yesterday. No one screams article 10 blue murder about such things. Nor should they.
Adopting a more grown-up approach was recommended by Professor Luciano Floridi, who advises google on ethics, pointed out in another piece in the Guardian, where he said:
nobody is trying to destroy the internet, whitewash history, undermine an industry, or override one fundamental human right in favour of another. There are different rights, values, and interests – indeed different philosophies – at stake. We do not know yet how to harmonise them. Yet our effort should go towards finding a collaborative solution.
Of course, it’s not just google that’s affected. Any search engine which caches and displays in its results data derived from indexed web pages, is under a duty to remove or cease to display it if reasonably and justifiably requested to do so as required by the Google Spain ruling. According to CNet, the search engine Bing is also working on a mechanism to permit this.
No doubt Ask Jeeves will do likewise, although one imagines the original Jeeves simply coughing discreetly and saying
I told the gentlemen of the press that the information is “no longer available”. Mr Fink-Nottle was quite embarrassed by the disclosures already vouchsafed by his fellow Drones and I did not think you would want your Aunt Agatha to find out about yet another incident with a newt and a policeman’s helmet. Shall that be all, Sir?”
Reforming the Tories – and Labour
At a one-day conference (One Nation Day) hosted by the Tory Reform Group on 7 June, the legal aid cuts and access to justice were discussed in speeches by former MP Sir Ivan Lawrence QC, and Shami Chakrabarti, head of Liberty. This was admirably reported by Carl Gardner on his blog, Head of Legal, on which he posted audio recordings of the speeches and a written commentary.
Sir Ivan’s remarks were quite unsparing in their criticism of the present Tory-led government’s “total madness” in seeking to make pitiful savings with a policy which could only damage the rule of law and was “against all we stand for”:
we’re the party of law and order … What on earth are we doing weakening both of those, betraying both of those, when we’re a Conservative party?
He said half the criminal Bar could not longer make a living, and the PDS when it gets going will cost as much as the CPS, so in the end the policy would save nothing and simply destroy the independent criminal Bar.
His remarks followed a stinging critique by Shami Chakrabarti, who despaired of any party in government ever reversing the cuts.
She said the “Supertanker” policy of legal aid cuts was set in motion by New Labour – who coined phrases about “fat cat” lawyers on “gravy train” of legal aid. The Coalition merely continued in same direction. And no one has the political will to turn round that supertanker and reverse the cuts.
I haven’t heard a single promise from either Mr [Sadiq] Khan or any other member of the shadow cabinet [about] a reversal of this policy or any positive promise on legal aid. And I think it’s just absolutely essential that between now and the general election … that some policies are secured.”
And from Mr Khan, answer came there none, so far as we know, save this image, in which Mr Khan sports the fashionable “jelfie” telecasting his support for justice. So does that mean that if Labour gets into power, he will reverse the legal aid cuts? I think we should be told.
Post script: Where are they now? (part 94)
As a law student at Exeter during the flob-end of the 1970s, the author of this report was for a time chairman of the local student branch of the Tory Reform Group, and in a bid to break the mould of political apathy on campus used to hold lunchtime meetings at which no one turned up. Guest speakers were generally sympathetic after we’d bought them a couple of drinks in the union bar. After all, they had definitely not been heckled. (And they could claim just as much in expenses, as if they had been.)
He is not currently associated with any political party (and is, on the whole, distrustful of parties and their package deal policies).
Law round the world…
We’ve not done any international stories for a while, so here’s a general round up of what’s been happening, legally and illegally, around the globe.
To mark the 25th anniversary of the Tian An Men crackdown, or to prevent anyone else doing so, the authorities in China have been locking up journalists, like Huang Qi, of something called The China Centre for Human Rights and founder of the news website Skynet, according to this report in the Independent. Huang has been repeatedly imprisoned or detained, especially around anniversaries of the Tian An Men protests (and their brutal suppression) in 1989.
He is by no means alone. The organisation Chinese Human Rights Defenders earlier posted a report that Nearly 100 Detained, Restricted in Movement Around 25th Tiananmen Anniversary.
According to a recent post by David Cook on Halsbury’s Law Exchange,
The case concerning Delfi AS, the Estonian online news site, has the potential to be one of the most important cases relating to the responsibilities of internet publishers in the increasing digital era and to re-shape the way in which, and by whom, content is shared electronically.
The problem was the comments, made by readers of a news report about changing ferry routes,
some of which included personal threats and offensive language towards the owner of the company. Successful proceedings were brought against Delfi AS on the basis that it was liable for these third-party comments
The European Court of Human Rights (Delfi AS v Estonia, appn No 64569/09) upheld the Estonian court’s conclusion that the interference in the right to freedom of expression under article 10 of the Human Rights Convention involved in holding Delfi liable for the comments was justified because Delfi was a publisher and ought to have been aware of its responsibilties as such.
The case also attracted this comment on the Inforrm blog.
The judgment dates back to October 2013, but earlier this year 69 news and publishing organisations sent a letter to the President of the court asking for the decision to be reconsidered.
According to Lawfare, Germany’s top prosecutor has announced that he is opening an investigation into the alleged tapping of Chancellor Angela Merkel’s cell phone. A report in the Guardian explains that:
The key issue for the prosecution will be to establish whether the NSA monitored the German chancellor’s mobile automatically or by default, as the US government has so far implied, or whether individual agents were actively engaged in tapping her calls, as German tabloid Bild claims on Thursday. The latter would constitute a clear breach of German law on German soil according to paragraph section 99 of the German criminal code.
There have been a number of shocking and disturbing news reports of what some have described as a rape epidemic in India, and the question has been raised whether the newly elected Prime Minister Narendra Modi can do anything to solve the problem.
Human Rights Watch notes in a recent report that
“The failure of police to seriously investigate crimes, whether against members of marginalized groups, women, or children, is widespread in India. Modi campaigned as a leader who can deliver. He should take the initiative to press the police and the criminal justice system to be more responsive to cases of sexual violence. Too often, survivors of sexual abuse are too daunted to approach the police, fearing further abuse instead of receiving the support and even sympathy they need.”
Related content on the ICLR blog: Fair Trial or Foul? is about the last time there was a global outcry about rape in India, and the way the case was then dealt with in the court.
All the recent fuss about the way the hosting of the World Cup football tournament was awarded to Qatar has thrown up some questions about the middle eastern state’s suitability as a host nation in terms of the rule of law. A particular spotlight has shone on the way construction workers are treated. Last year it seems the government itself decided to investigate, according to a report on Construction Week Online: Qatar hires law firm to probe worker abuse claims.
The subsequent report by DLA Piper “leaves the Qatari government in no doubt as to the problems that exist and what it can and should do to fix them”, according to a report in the Guardian, which however was doubtful as to the government’s will or ability to impose or enforce better labour laws.
There have been fresh calls for a reconsideration of a Law on Foreign Agents ( Law No. 121-FZ) signed by President Putin in 2012, in view of its effect on foreign-funded media outlets. The stated policy of the law was to “ensure transparency for those who act as foreign agents, to make that information clear for Russian citizens”, but it has resulted in heavy handed and intrusive investigation of the alleged sources of funding for organisations that might be critical of the government. Last month, there was a proposal in the Duma for an amendment to extend the law to cover media organisations.
According to Human Rights Watch:
The law on “foreign agents” for nongovernmental organizations was pushed through parliament after Vladimir Putin’s return to the presidency in 2012 and was upheld by the Russian Constitutional Court in 2014. The law requires advocacy groups that accept foreign funding and engage in “political activity” to register as “foreign agents,” a term, popular in Russia during the Cold War and beyond and commonly understood to mean foreign spies and traitors. The “foreign agents” law contradicts Russia’s international human rights obligations to protect freedom of association and expression. It has been consistently criticized by the United Nations, the Council of Europe, the European Union, and other agencies.
The proposed amendments would require media with at least 25 percent foreign funding from either governmental or nongovernmental sources to register as “foreign agent media” if they cover “political activities.” This is likely to have a chilling effect on political reporting, which, given the attention focused on Ukraine and the Crimea, is probably desirable from Putin’s point of view.
- A same-sex divorce case involving two women legally married in Iowa is now in the hands of the Nebraska Supreme Court, which could decide whether the state has to recognize their relationship.
In a report in the Kearney Hub,
Same-sex marriages began in Iowa in 2009, after the state’s Supreme Court struck down a law that defined marriage as the union of one man and one woman. [But] Nebraska doesn’t recognize same-sex marriages, civil unions or domestic partnerships because of a constitutional amendment that was overwhelmingly approved by voters in 2000.
- A heavily armed “sovereign citizen” was shot dead outside a courtroom in Georgia last week after apparently attempting an assault on the building. Full story in the ABA Journal which recites how
Armed with explosives, gas or pepper grenades, and an assault rifle while wearing a bulletproof vest and a gas mask, Dennis Marx had thrown “homemade spike strips” into the roadway to stop traffic in front of the Forsyth County Courthouse as he was about to enter it. Marx, said by a local law enforcement official to be part of the so-called “sovereign citizen” movement of people who believe they are not subject to state and federal laws, was due in court to face drug and weapons charges.
- And in yet another decision which has consequences for freedom of expression, the US Supreme Court declined to review a lower court’s order requiring a New York Times reporter to testify in a criminal case against a former source. According to a report in the Guardian, the Supreme Court’s decision not to entertain the appeal
set up a showdown between the courts and reporter James Risen, who has said he will go to prison rather than testify in a case against Jeffrey Sterling, a former CIA officer.
For more on this: see TechDirt, Supreme Court Won’t Hear Reporter’s Appeal; James Risen May Now Face Jail For Not Revealing Sources
This week’s parish news contains a lot of alphabetical acronyms, including ABS, BSB, LSB, LSE, SRA and UKSC.
The latter is interesting because only last week Justice Secretary Chris Gralying was urging the LSB to plan for its own demise (having completed its mission) (see Weekly Notes – 6 June 2014) whereas its 2014 report reflects the uber-regulator’s somewhat empire-building ambition, moving regulation away from professional associations such as the Law Society, Bar Council etc, and more into the hands of a proposed single regulator. In the words of its outgoing chairman, David Edmonds, “regulation needs to be further detached from the influence of the provider towards the consumer.”
Second, the BSB, or Bar Standards Board, one of the semi-detached professional regulators, has vowed to achieve a 30% target for diversity data collection from barristers on sexuality, religion and disability. According to Legal Futures,
Barristers have been much more forthcoming in giving the regulator details of their age, gender and ethnic origin. Last year the BSB said it obtained details on these characteristics from 78% of the profession. However, collection rates on information about sexual orientation, gender reassignment, marriage or civil partnership, pregnancy and maternity, religion or disability was around 11-15%.
It’s not clear whether the BSB thinks there should be more LGBT members of the Bar, or civilly partnered, or pregnant ones, or just that there should be better reporting of the fact (no doubt to satisfy the curiosity of the LSB ). But for the surveyed barristers themselves, perhaps these details are not only personal, but not relevant to their professional role.
Our next acronym is ABS – Alternative Business Structure. This is warranted by another report in Legal Futures, to the effect that the British Printing Industries Federation has been awarded an ABS licence, which means their legal department, BPIF Legal, can provide help with “technical or legal issues” as well as launching new insurance and financial services products. Or to put it another way, the in-house lawyers can now provide out of house advice and services, presumably.
The licence was awarded by another acronym, the SRA or Solicitors Regulation Authority earlier this month, though it will not take effect till October.
Last, but not least of our cluster of acronyms is LSE, which earlier this month hosted an event to discuss The State of Freedom In England. This featured another broadside by Shami Chakrabarti, on creeping government interference with liberty, and a discussion about freedom and the criminal law, by Professor Nicola Lacey. The event is too well reported by the indefatigable Carl Gardner on Head of Legal to require any further comment. He concludes that it was “an interesting discussion – and well worth listening to, as all these LSE Law events are”.
The latest from the Queen’s Counsel cartoon in The Times, via Alex Williams:
We hope this collection of Weekly Notes has also been interesting and worth reading. We don’t accept comments on site, but you can tweet us @TheICLR and/or the author @maggotlaw.