Weekly Notes: legal news from ICLR – 17 October 2014

Posted on 17th Oct 2014 in Weekly Notes

This week’s confection of legal fancies includes a couple of birthday cakes, a pie chart, and some half-baked ideas from politicians, as well as some rather bitter offerings from less fortunate jurisdictions.

UPDATED; 19 October 2014

 

Five years young: the UK Supreme Court

This month marks the fifth anniversary of the first hearings by the United Kingdom Supreme Court.

Its first judgment, In re appeals by Governing Body of JFS  [2009] UKSC 1; [2009] 1 WLR 2353 was a decision about the availability of legal aid and a protective costs order in a case involving a religious school and its alleged discrimination against a pupil. Since then the court has given many judgments in many other areas of law, but then so had its predecessor, the Appellate Committee of the House of Lords. What makes the Supreme Court worth celebrating is the modernisations and innovations it has introduced since then.

Sup Ct image 2

Court 1 (UK Supreme Court) by Isobel Williams

Relocation

The first modernisation was that done to the building itself, which was formerly the Middlesex Guildhall, dating from 1913, and described by Pevsner as “art nouveau Gothic”. It was built to house the Middlesex County Council and Quarter Sessions. In the 1980s it was converted to a Crown Court building. When the plan to create a Supreme Court was first mooted, there was considerable discussion about whether to convert an old building, for which the Middlesex Guildhall was the prime candidate, or to build a new one. I must confess to having been in the latter camp. This was a bold moment in legal and constitutional history and, as with the creation of the devolved parliamentary assemblies of Wales and Scotland, it deserved a piece of bold new architecture. But there was a question about the site of any new building, and the location of the Middlesex Guildhall, and its architectural blend of ancient and new, like the common law itself, made it a suitable choice. Moving the Law Lords (or Justices of the Supreme Court) across Westminster Square was a physical manifestation of the separation of powers – of the judiciary from the legislative and executive branches of government. And there were some really quite nice features in the building, such as panelling, carving and stained glass, which the complex renovation (including broadband-enabled rewiring) would restore to public appreciation.

Accessibility

Among the innovations which the new court has brought are a much more open court procedure, with public access in a way that was never possible in the House of Lords, and hearings routinely televised. Moreover, judgments are not only given in open court now, rather than being voted on in the debating chamber in a weirdly anachronistic proceeding, but they are accompanied by a plain English explanation and, more recently, the delivery of a summary on film which is then posted on You Tube on the Supreme Court’s own channel.

These innovations make the Supreme Court probably one of the most accessible courts in the world. There is probably more that could, and no doubt will, be done to make its proceedings less mysterious to an interested public; but it would be good if some of its innovations could now be rolled out across the other courts. We have some televising of some proceedings in some Court of Appeal courts, but this is patchy and frankly not very accessible in terms of enabling the viewer to understand and follow what is going on. And the only hearings in the Crown Court that can be televised are the sentencing remarks in occasional cases which are deemed to be of interest to the media. Some may view with alarm the prospect of a celebrity jousting session in the manner of the Oscar Pistorius trial in South Africa, but think how much better it was to be able to see and hear the proceedings for yourself, with all their rants and longeurs, compared with reading selective, sensationalised coverage in the press.

At any rate, we could be recording trials, even if we don’t broadcast them live; and storing the film in the same way we currently store sound recordings from many courts. Come to that, we could be broadcasting the sound recordings via radio or the internet. That might be less intrusive, and less intimidating, for witnesses and jurors.

 

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Isobel Williams

Achievements

What of the Supreme Court’s achievements? The current President of the court, Lord Neuberger of Abbotsbury, wrote a piece in the Independent, listing  Five Key Cases from its First Five Years.

The proper citations aren’t given in this newspaper report, so here they are for anyone who wants to read the law reports in full:

  1. Prest v Prest [2013] UKSC 34[2013] 2 AC 415 (Divorce, big money, hidden assets, whether corporate veil to be pierced)
  2. Regina v Horncastle [2009] UKSC 14[2010] 2 AC 373 (Crime, evidence, hearsay, whether allowing in statement of absent witness infringing right to fair trail)
  3. Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34[2012] 1 AC 531 (Evidence, closed material procedure, whether non-disclosure of evidence to party a breach of fair trial)
  4. Regina (Buckinghamshire County Council) v Secretary of State for Transport; Regina (HS2 Action Alliance Ltd) v Secretary of State for Transport; Regina (Heathrow Hub Ltd ) v Secretary of State for Transport (heard together) [2014] UKSC 3[2014] 1 WLR 324; (Planning, environmental assessment, proposed hybrid parliamentary Bill, whether infringing European directive)
  5. Regina (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening[2014] UKSC 38[2014] 3 WLR 200 (Crime, assisted suicide, aiding and abetting, whether lawful).

Future appointments

And what of its future? The UK Supreme Court blog, which monitors and comments on the cases heard and to be heard in the court, recently speculated (in a post written by two academics (Graham Gee, a Senior Lecturer at Birmingham Law School and Kate Malleson, a Professor of Law at Queen Mary) on the new appointments that will be necessary when several of those now serving are required to submit to mandatory retirement in three or four years’ time. They propose various changes to the way the Supreme Court Justices are selected in future, in order to achieve a better balance of gender, merit and background.

 

The subtle and perceptive images of the Supreme Court are by Isobel Williams: for more, go to her blog, Drawing from an uncomfortable position

 

Another anniversary: BBC Law in Action at 30

Once again presented by Joshua Rozenberg, its first and current presenter (albeit with a 25-year career break), Law in Action this week marked its 30th birthday with a special edition broadcast from Gray’s Inn.

It took the form of a panel discussion whose three guests could just as easily have been the bench of a court: Baroness Hale of Richmond, Deputy President of the Supreme Court, Lord Judge, former Lord Chief Justice, and Sir Keir Starmer QC, former Director of Public Prosecutions and now a Labour parliamentary candidate. Among the audience were Lord Pannick QC, who as a young barrister had participated in a pilot of the show, and Clive Coleman, barrister, its most recent former presenter, and currently BBC’s legal correspondent.

The panel were asked to identify the most significant legal development during the 30 years the programme had been running. Keir Starmer proposed the Human Rights Act 1998, which changed the way the courts interpreted and applied many other laws.  Lord Judge singled out the Constitutional Reform Act 2005, which altered the whole relationship of the judiciary and the executive in government, and created the UK Supreme Court. Lady Hale reckoned it was the combination of measues by which the law now protected and promoted equality and accorded everyone the same rights regardless of race, colour, creed, ability, sex, orientation and age.

At the end of the discussion there was a vote to elect the most significant: but we’ll not spoil the fun by disclosing the verdict. If you haven’t already done so, you should listen to the programme on the BBC Radio 4 website or download the podcast (recommended).

UPDATE: Review in the Sunday Times (not uncritical, but see comments): Radio Waves: One law for all

 

Digital amnesia

Lest we forget… Google remembers everything.

Now, in its recent Transparency Report, Google has provided statistics for the number of takedown requests it has had from people wishing to exercise the “right to be forgotten” (strictly speaking the right to have removed links to “inadequate, irrelevant, no longer relevant, or excessive” information on web pages) since the European Court of Justice’s ruling in the Google Spain case.

Web Pro News have provided a summary and links to the Google report and a useful FAQ section. Although it spins the task of deciding on these requests as though it were a burden no multinational corporation capable of mapping and filming the globe as well as indexing all its information should be asked to attempt, it isn’t really such an onerous business. The number of requests so far is just under 150,000, and in response to those requests it has evaluated for removal some half a million URLs. Of these, nearly two thirds (58.4% overall, 64.6% in the UK) were not, in the end, removed.

Among those that were:

  • From Italy, a woman requested the removal of links to a decades old article about her husband’s murder, which mentioned her name. . This was removed from search results from her name.
  • From Germany, a victim of rape requested removal of a link to a newspaper article about the crime. This too was removed from search results from her name.
  • From the UK, a man asked for the removal of links to a news report about his conviction for an offence which was now a spent conviction under the Rehabilitation of Offenders Act. Those pages were removed from search results for his name. (This seems eminently in line with the purpose of both the Act and the ECJ decision.)

Among those that were NOT:

  • From Switzerland, a financial professional requested the removal of more than ten links to pages reporting on his arrest and conviction for financial crimes. (Nice try.)
  • From the UK, a media professional asked in vain to have removed from search pages four links to articles reporting on embarrassing content he posted to the internet.
  • Also from the UK, a doctor requested removal of more than 50 links to newspaper articles about a botched procedure. Three pages containing personal information but not mentioning the procedure were removed, but the links to reports of the incident remained.

According to Google, the sites that are most impacted by the URL removals are Facebook, ProfileEngine, YouTube, Badoo, Google Groups, Yasni.de, Wherevent.com, 192.com, yasni.fr, and yatedo.fr. This suggests that the majority are not about financial crime or pederasty, or even about corporate reputational hygiene, but rather the sort of embarrassing incidents and exchanges which on maturer and soberer reflection their “data subjects” deem “no longer relevant, or excessive”.

But the point needs to be reiterated, that these takedowns, such as they are, are but a drop in the ocean compared to the number Google acts on in respect of commercial considerations, like breach of copyright, or from governments or in pursuit of court orders. In the last month, Google reports that there were 29,074,809 URL removal requests on grounds of copyright alone. If you compare that to the total number of RTBF or “amnesia” requests (over several months), the pie chart looks like this:

pie chart

 

UPDATE: Google bring its RTBF Roadshow to London: full story (we’ll write more on this later) via Charles Miller on BBC Academy / College of Journalism blog: Google’s ‘right to be forgotten’ tour comes to London

And a link to the actual hearing in London of the Advisory Council which Google has set up to help it determine takedown requests.

 

The double squeeze on privacy

It’s not just Google that wants to capture and keep your private information – the Government is keen to know all, and indeed quite jealous of the ease with which commercial concerns, like Google, Facebook et al, can get their users freely to give up information and let them keep it, indefinitely, while government agencies have to pass legislation and scare the voters with tales of terror and organised crime to be allowed to do so, and then only for limited periods. Between the two of them, though, between the geeks and the goons, we’re all stuck in a double squeeze on any attempt to keep our private information private.

As a result, Paul Bernal asks in a timely wake-up call on TechRadar, Has our right to privacy been forgotten?

 

Get Cartier! (But make sure it’s the genuine article.)

Internet site blocking must be subject to safeguards

In a novel claim, Cartier applied for an injunction to require Internet Service Providers, including B Sky B, to block access to websites on which fake Cartier watches and jewellery could be purchased. In Cartier International AG  v British Sky Broadcasting Ltd  [2014] EWHC 3354 (Ch), Mr Justice Arnold held that the court had jurisdiction to grant such an injunction, but adopted the key submission of the Open Rights Group, as intervener, that such orders should always contain safeguards against abuse. According to Preiskel & Co LLP, who acted for ORG, the judge not only accepted the idea of safeguards in principle, but also

  • adopted ORG’s concrete proposals about the information to be included on landing pages and “sunset clauses” as safeguards against abuse (paras. 262 to 265); and
  • thanked ORG for its “brief, moderate and helpful” written submissions, which were “sensibly” not opposed by the other parties (para. 7).

You can read those written submissions (penned by David Allen Green, acting pro bono).

See also (for more background): Guardian, Cartier launches legal attempt to block websites selling counterfeit goods

 

 

Law and injustice around the world

China

Cult members sentenced to death for beating woman to death

Two members of a the banned “All-powerful Spirit” religious cult in China, Zhang Fan, 29, and her father, Zhang Li-Don, 55, were given the death sentence by Yantai Intermediate People’s Court in Shandong, north eastern China, according to state media.

The cult, also known as the Church of Almighty God, apparently believes Jesus has been resurrected as a Chinese woman (who is also the founder’s wife). The two defendants, with three other cult members (who were sentenced to lesser penalties), were found guilty of murdering a woman who they claimed was an “evil spirit” after she refused to give them her telephone number. The incident happened in a McDonald’s fast food outlet in Zhaoyuan, Shandong, in May.

The defendants tried to plead self-defence on the basis that they had been attacked by the “demon’s supernatural powers”. The death sentences will be reviewed by the supreme court.

Source: Independent.

 

Pakistan

Woman sentenced to death for blasphemy

A court in Lahore has confirmed the death penalty imposed on a Christian woman, Asia Bibi, for the offence of blasphemy, after two prominent politicians who tried to help her were assassinated.

Bibi’s lawyer, Naeem Shakir, said his client had been involved in a dispute with her neighbours and that her accusers had contradicted themselves. They accused Bibi of insulting Islam after neighbours objected to her drinking water from their glass because she was not Muslim.

Rights groups say the blasphemy law is increasingly exploited by religious extremists as well as ordinary Pakistanis to settle personal scores. The law does not define blasphemy and evidence might not be reproduced in court for fear of committing a fresh offence. There are no penalties for false accusations.

Those accused are sometimes lynched on the spot. If they are arrested, police and the courts often allow trials to drag on for years, afraid of being attacked if they release anyone accused of blasphemy.

Source: Mubasher Bukhari on Reuters.

 

Scotland

Courts Reform Bill will bring major reforms to Scotland’s civil justice system

The Scottish Parliament has passed legislation described as an “important milestone” in achieving efficiency and saving expense in the civil justice system. The main plank of the reform involves allowing sheriff courts to hear more cases, by moving the financial ceiling up from £5,000 to £100,000, leaving Scotland’s top civil court – the Court of Session – to deal with the most serious ones. However, the reform was criticised in some quarters, notably the faculty of advocates.

Full story: BBC 

 

United States

US Supreme Court’s refusal to hear appeals over same-sex marriage paves way for “sweeping expansion of gay rights”

According to the Guardian:

The court’s unexpected decision to slam the door on pending appeals meant there will be no imminent ruling on the constitutionality of gay marriage nationwide. But it had the dramatic effect of clearing a way for its rapid expansion to 30 states and the District of Columbia.

In some of the most conservative states in the country, county clerks issued marriage licences within hours of the justices’ terse announcement on Monday.

The decision had an immediate impact on five states. Same-sex marriage became legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, where the authorities had been appealing defeats against local bans on same-sex marriage in the lower courts.

Legal experts said gay marriage was also now “presumptively legal” in six further states that shared jurisdictions with the appeal court circuits that heard the defeated appeals: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

 

And finally…

What with privacy, digital amnesia (the right to be forgotten) and multi-agency snooping (DRIP, RIPA etc), the law and the internet seem set for a long-going partnership.

But as it’s the weekend, let’s  take a slightly less serious view of the web, with cartoonist Tom Tomorrow’s wittily retro-futuristic take on techno-frivolity, Capt. Kirk vs. the internet. (via the Daily Kos, 8 Sept.)

Tomorrow modern world

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

That’s all folks! Have a great weekend.