Weekly Notes: legal news from ICLR – 21 November 2016

Posted on 21st Nov 2016 in Weekly Notes

This week’s survey of legal news and comment includes spying on the public by computer and camera, the growing storm over the article 50 Brexit litigation and the independence of the judiciary, cryonics in court, adoption targets in England and Wales, and sex offence outrages overseas.

Surveillance

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Investigatory Powers Bill

The Investigatory Powers Bill, having been passed by the House of Lords, has now completed its final legislative stage and is set to become law. Known colloquially as the Snoopers’ Charter, it has been the subject of considerable comment, most of it negative. The Independent said it “gives Britain perhaps the most extreme spying powers in the developed world.”

The Guardian went with ‘Extreme surveillance’ becomes UK law with barely a whimper

One of its most alarming features is a duty on Internet Service Providers (ISPs) to retain for at least a year records of their users’ web browsing metadata, known as Internet Connection Records (ICRs) which would capture in each instance at least the destination IP address but possibly also a service name (e.g. Facebook or Google) or a web address (e.g. www.facebook.com or www.google.com) along with a time/date for each connection. Use of the ICRs will be restricted to “relevant public authorities” (but not local authorities) and subject to stringent conditions. However, access will not be subject to the “double lock” warrant approval system required for certain other types of surveillance. All that will be required is sign-off by a “designated senior person”.

Writing in Ars Technica (Why the Investigatory Powers Act is a disaster waiting to happen), Glyn Moody points out that

computer experts have explained at length that retaining metadata is potentially far more intrusive than retaining content. Metadata is already categorised, which makes it much easier to aggregate and cross reference.
Once the databases holding ICRs are created, it is only a matter of time before some of them fall victim to one of the many threats that will see intimate details of people’s online lives exposed to the world, with possibly serious consequences for the individuals concerned.

LIBERTY sees the Bill as an attack on civil liberties and has vowed to fight it in the courts. See their blog post, As Snoopers’ Charter becomes law, our message to the Government: see you in court:

But under the guise of counter-terrorism, and in an environment of devastatingly poor political opposition, the Government has now won the ability to spy on the entire population – a ‘world-leading’ precedent.

Curiously enough, Liberty’s former director, Shami Chakrabarti, who is now shadow Attorney and a member of the House of Lords, seems not to have given the Bill as much scrutiny or opposition as one might have expected, which has raised metaphorical eyebrows on Twitter.

Surveillance camera report

A different type of surveillance is the subject of the Surveillance Camera Commissioner’s third annual report to the Home Secretary. The Annual Report for 2015/16 notes how, thanks to “austerity bite”, a number of local authorities are switching off systems or reducing monitoring. This might be thought (eg by Liberty) to be a good thing. Not so the Commissioner, who says in his introduction (addressed as a letter to the Home Secretary) that he is keen to “to drive up standards and compliance with legal requirements”. Perhaps more alarming is the replacement of “ageing technology” with more modern, big data compliant, systems. As he notes:

The ‘internet of things’ will impact upon public surveillance as data is collected, pushed around the networks and cross referenced with other databases. This is a strategic issue for organisations utilising such technology, regulators and the citizens it impacts upon. Its value as an intelligence and protective tool is clear, its ability to impact on the privacy of the citizen is equally clear…”

There is a Surveillance Camera Code of Practice (SC Code) with which he is keen to ensure, and measure, compliance. Chapter 1 of the report is concerned with reviewing its impact and operation. The report also covers things like body worn video (BWV) carried by police and parking enforcement officers, surveillance cameras in taxis, and unmanned aerial vehicles (UAVs – or to the rest of us, drones) increasingly used for snooping.
Read the Report

 

Constitutional law

Multi-party Brexitigation in the Supreme Court

The Miller case (on whether the government can trigger article 50 notification of Brexit using prerogative powers, or must involve Parliament to a greater or lesser extent) is now set fair for the Supreme Court. On 10 November the government, represented by the Secretary of State for Exiting the European Union, released its grounds of appeal against the High Court’s decision and now it has released its skeleton argument, or appellant’s case, at a not very skeletal 56 pages.

Permission to appeal (direct from the High Court, “leapfrogging” the Court of Appeal) was granted by a panel of three Justices (Lord Neuberger, Lord Mance and Lord Kerr) and the case can now proceed to a full hearing. The Supreme Court has set aside four days, 5 – 8 December 2016, for the appeal hearing.
However, a number of other parties have applied to join the, er, party, as “interveners” (the civil procedural term for gatecrashers) so the proceedings will be really quite lively, and fun to watch via the Supreme Court’s own TV channel. The gatecrashers are:

  • The Lord Advocate, Scottish Government
  • The Counsel General for Wales, Welsh Government
  • The ‘Expat Interveners’, George Birnie and Others
  • The Independent Workers Union of Great Britain

Additionally, the Attorney General for Northern Ireland has made a reference to the Court regarding devolution issues relating to that jurisdiction. Permission to intervene is therefore not necessary.
All 11 Justices will sit on the appeal. This means, inter alia, there is a prospect, or risk (from the law reporter’s point of view) of anything up to 11 different opinions being expressed on the matters in issue, which will make writing the headnote a bit of a headache. It also raises the prospect of one or more dissents. (At the back of everyone’s mind, also, is the prospect of a reference on a significant point of European law, namely the revocability of any art 50 notification once given, to the European Court of Justice. Such a turn of events would be likely to turn some of the more ardent Leavers into gibbering wrecks of self-destructive indignation, but that should not put the SC Justices off doing the right thing, if right thing it is.)

Halegate

Among the 11 Supreme Court Justices sitting “en banc” will be Baroness Hale of Richmond, who discussed the forthcoming hearing in very general and speculative terms in a lecture, on the constitutional role of the Supreme Court, given to law students in Malaysia on 9 November. This was perhaps unwise, given the propensity for some sections of Parliament and the media to cry foul and accuse the judiciary of bias or, in a manner of implication, treason (if not gunpowder and plot as well). It forced a Supreme Court “spokesman” to put out the following coldwater dampener:

Lady Hale was simply presenting the arguments from both sides of the Article 50 appeal in an impartial way for an audience of law students, as part of a wider lecture on constitutional law. It is entirely proper for serving judges to set out the arguments in high profile cases to help public understanding of the legal issues, as long as it is done in an even-handed way.
One of the questions raised in these proceedings is what form of legislation would be necessary for Parliament to be able to lawfully trigger Article 50, if the government loses its appeal. A number of politicians have raised the same question. Though it was not dealt with explicitly in the High Court judgment, it is not a new issue. In no way was Lady Hale offering a view on what the likely outcome might be.”

There was also a lively debate on Twitter and in due course some blog posts, including:

Now two Tory MPs no one has ever heard of and whose names I can’t remember are claiming that Lord Neuberger, President of the Supreme Court, should recuse himself from the 11-a-side tournament on the ground that his wife once expressed opinions about the stupidity of Brexit on Twitter. If Lord Neuberger was in the habit of allowing his judgments to be influenced by his wife’s Twitter account, I think we should have heard about it by now, but as we are not living in a medieval theocracy (at least not yet, in this country) I assume she is allowed her own independent opinions and may express them if she wishes.

Judiciary

Judge not, lest ye be Lord Chancellored

No lesser a figure than Lord Judge, former Lord Chief Justice, has now weighed in to the debate on Liz Truss’s performance as Lord Chancellor in relation to her role as protector of the judiciary and the independence thereof. (Before continuing, I should point out that Igor Judge has been a good friend to the ICLR and the Law Reports and is in my opinion a thoroughly good egg, so it would be pointless to pretend what follows isn’t just a teeny bit favourable to his point of view. That said, I’m only quoting from an interview by the Times legal correspondent, Frances Gibb, published on Saturday 19 November.)

There is a statutory duty on the lord chancellor to defend the judiciary that has not been met. If taken to court in a judicial review there is a “strong chance” the finding would be against her, [Lord Judge] says. However, that is not going to happen “for the simple reason that there is not a judge who could have heard it”.

Liz Truss’s intervention, when it came, was “much too late and too little”.

He suggests that Ms Truss must have consulted Downing Street before making her careful statement defending the independence of the judiciary because the wording was similar to one issued by the prime minister. “The whole point of the lord chancellor’s job is that he or she is there to take an independent line.”

[…]

Does it matter? He says that it does, because of the damage to public confidence in the judiciary. “Men and women around the country want their judges to be able to find for them against the government, against the council, the mighty company. They want judges to be independent and their anxiety is when they have a sense that they are not.”

This follows an earlier intervention by the Chair of the Bar, Chantel-Amée Doerries on Huffington Post, discussing the attacks on the judiciary in the wider context of Brexit, Trump, The People and Their Judges

The shame of it is that newspaper editors, and even some politicians, have used the judgment to paint the judiciary as the pantomime villain, rather than as an opportunity to debate the checks and balances inherent in the British political system.

In the context of the Lord Chancellor’s (feeble) response, she observed that:

Defending the judiciary is not about restricting the freedom of the press, it is about engaging with the press.

Doing so, fairly but fearlessly, would have helped bolster the public perception that judges, far from being enemies of the people, are, in protecting their rights and freedoms, their most faithful servants.

UPDATE Sunday.

The Ministry of Justice has confirmed that the ceremony to make Lord Chancellor Liz Truss an honorary bencher of Lincoln’s Inn “has been postponed” and no new date has been arranged, reports Legal Cheek (a little gleefully, it has to be said).

 

Human Rights

Government response to Strasbourg judgments

One of the Lord Chancellor’s little tasks this week, while doing her best to keep a low profile, was to present a Report to the Joint Committee on Human Rights on the Government’s response to Human Rights judgments 2014–16 (Cm 9360).  The report covers the government’s response to adverse decisions in the form of

  1. judgments of the European Court of Human Rights in Strasbourg against the UK under the European Convention on Human Rights (ECHR); and
  2. declarations of incompatibility by UK courts under section 4 of the Human Rights Act 1998 (HRA).

Though this is a routine report, the position is slightly awkward this time given that the present government has made it an election pledge to get rid of the HRA, though the Prime Minister, Theresa May seems to have withdrawn from her earlier enthusiasm for cutting ties with the Strasbourg Court as well.

The report lists the cases involving the government and identifies how it plans to deal with adverse findings (of which there were fewer over the last two years than there have been for many years. (In fact the figures — see p 25 — show how the enactment of the HRA 18 years ago hugely reduced the number of adverse findings from Strasbourg, once the old cases had run off.)

There’s also a handy list of declarations of incompatibility made since the HRA came into force, from Alconbury, R on the application of, to Z (A Child) (No 2).

You can read the report here.

 

Family law

Adoption targets

Among the blizzard of routine accusations against the family justice system is the idea that court are in cahoots with social workers to help them steal people’s babies to feed the insatiable demand of would-be adopters. Such accusations will be harder to resist now that the Transparency Project has done a solid piece of FOI-based research on local authority “adoption targets” suggesting that a number of such authorities were motivated not only to increase the efficiency of the adoption process, but to increase the throughput of babies and children entering the adoption process.

In a post entitled English councils confirm they set targets for the number of children to be adopted the author of the report, Alice Twaite, said the research aimed to respond to concerns expressed by the former MP John Hemming who noted that children were leaving care and being adopted at a much higher rate in the UK than in any other European country. 

What Hemming and others have expressed concern about is that – rather than being used to get children out of the care system, such ‘targets’ instead risk impacting on decision making at the stage where people are deciding if children should enter the care system i.e. when a decision is made to apply to the courts for a care order, and whether they should be adopted as opposed to some other care arrangement being chosen.

Though the research is not conclusive, it demonstrates that

  • Significant numbers of councils in England are setting local numerical targets for how many children (or what percentage of their care population) should be adopted from care
  • Other councils don’t set numerical targets for numbers of children to be adopted from care
  • It’s not clear from this ‘snapshot’ how many councils are target setting in this way; how the targets are set and used; or whether (let alone how) they impact on decisions about individual children

The report calls for further research and an open and honest debate about the matter.

Even if there is only a perception that targets could be operating to influence decision making for children at a very early stage of proceedings, this could have a very serious impact on public trust and confidence in the system of child protection.

 

Welfare decision favours cryonic preservation

Habeas corpus, one might almost say. The case of In re JS (Disposal of Body) [2016] EWHC 2859 (Fam) has been widely reported as giving a 14-year-old child the “right” to cryonic preservation of her body on premature death from a rare form of incurable cancer. (See, eg the Guardian, 14-year-old girl who died of cancer wins right to be cryogenically frozen.)  In fact the decision was a fairly standard welfare decision in the context of a dispute between two parents over who was to decide how to dispose of their daughter’s body when the inevitable death came. Despite the best efforts of the excellent Rights Info blog ( Is There A Human Right To Cryogenically Freeze Your Body?) to paint this as some sort of development of human rights law, that seems to be stretching it a bit. In fact the key case cited was an old one, about property in a corpse: Williams v Williams (1882) 20 ChD 659 (£).

Mr Justice Peter Jackson (hero of the “emoji judgment” case we commented on earlier – Giving a clear and simple judgment: how hard can it be?) explained that the girl, who was in fact the applicant in the proceedings (which may have helped confuse the newspapers), had expressed the wish to be “cryopreserved” in the hope of being resuscitated in many years’ time when a cure for her type of cancer has been found.

I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

As the judge observed, the case was not about the merits or otherwise of cryonic preservation, or the rationality of the dying girl’s wishes. It was simply about “resolving the dispute between [her] parents that hangs over the arrangements that are to be made after her death.” The problem was that neither the mother nor the daughter wanted the father involved in any way, shape or form, either before or after the daughter’s death. She didn’t even want her father to be allowed to see her body. A decision granting the mother and denying the father the right to make welfare decisions for the daughter meant that the mother was able to make necessary preparations before death to ensure as efficient a process for setting in train the cryonic preservation (which required special arrangements with a particular organisation) as soon as possible after it.

In the end, this was achieved by granting an order in favour of the mother and an injunction barring the father from doing a number of things. There was also a reporting restriction order (RRO) preventing any reporting of the judgment until a month after the daughter’s death, which sad event occurred on 17 October. Thus it was that the newspapers could not report the case until this week. (So precisely was this observed that early rushes of front pages for the relevant day, released on the previous evening for the purposes of TV news discussions, were issued in redacted form: see UK Press Gazette, Redacted front pages provided to broadcasters due to midnight end for injunction in child cryogenics case)

The stuff of fiction? 

Although the judge didn’t go into the subject in detail, the idea of cryonic preservation underpins many science fiction narratives. Nor is it confined to sci-fi. This summer, the American novelist Don Delillo published a novel, Zero K, about a power-crazy plutocrat setting up a cryogenic facility in a remote bunker and recruiting a selection of top brains and superior human specimens for preservation with a view to launching a master race when the rest of the world had destroyed itself (inevitably) in the future. As novels go, it went, but I don’t think I’d recommend it particularly.

But cryonics is also a matter of fact, not just speculative fiction, and it is not surprising the story as reported in the newspapers should focus on the girl and her internet-research inspired dream of scientific resurrection, rather than the humdrum misfortune of warring parents.

UPDATE

This case has now been the subject of commentary from, among others:

 

Law (and injustice) from around the world

Dubai

Rape victim blamed

In a nightmare inversion of logic, the police in Dubai have treated a British woman who reported being violently gang-raped by two male tourists in a hotel as the guilty party and prosecuted her for immorality. She is currently on bail, awaiting trial, her passport confiscated and her parents desperately trying to raise a £25,000 defence fund. The two men, who were also British, have also been arrested and police are looking (I bet they are) at mobile footage taken by the alleged attackers.

Radha Stirling, founder and director of Detained in Dubai, said the nation’s treatment of rape victims is “tremendously disturbing”. In a report of the case in The Mirror she is quoted as saying:

The UAE has a long history of penalising rape victims. It is still not safe for victims to report these crimes to the police without the risk of suffering a double punishment. Police regularly fail to differentiate between consensual intercourse and violent rape. Victims go to them expecting justice, and end up being prosecuted. They not only invalidate their victimisation, they actually punish them for it.”

 

France

Historic sex offences against minors

A famous English photographer has complained of an “abominable libel” and a complete travesty of the presumption of innocence in France where his name has been linked to allegations by an adult author that she was sexually abused and raped as a teenager on holiday in the 1980s. Flavie Flament, a well known French radio presenter, does not name her alleged assailant when describing the events in her book Consolation, but the 83-year-old Englishman’s name was blurted out on TV when she was interviewed by a talk show host, who then addressed him via the camera calling him a “piece of shit” and an “arsehole” (according to the Times, 18 November, p 13).

Other women have now come forward and spoken to the media about how they, too, as teenagers were raped in similar circumstances.

The problem is that in France there is a statute of limitations precluding the prosecution for sexual offences against a child once the complainant has reached the age of 38, as is the case here. So there can be no trial and no opportunity, it is said, for the person accused to either defend themself or obtain the acquittal necessary to clear their name.

This is worth remembering when we complain (as some do) about the persistence of child sex abuse allegations or their dredging up many years later, with all the risks attendant on false memory syndrome, fading genuine memories, and the inevitable loss or deterioration of any physical evidence (usually there is none). Without a trial, or trial of the facts, there can be no clarity or truth. That said, trials are not there to establish truth in any absolute sense, only whether a particular assertion of truth has been proved, under adversarial (or inquisitorial) assessment, to a given standard.

While we’re on the subject of historic sex allegations, it appears that the Jay Inquiry, as the CSA inquiry might now (or for now) be called, has shed yet more lawyers and a clutch of complainants. Nevertheless, Baroness Jay is steadfast in her determination to see it through and complete the continually bogged down inquiry.

See also last week’s story on the Henriques’ Report on the Metropolitan Police’s bungled Operation Midland (Weekly Notes – 14 November 2016).

 

Saudi Arabia

Human rights activists prosecuted

Two human right activists who tried to form a group called the Union for Human Rights were unable to obtain the necessary licence in Saudi Arabia, as required by law, and are now being prosecuted for forming an unlicensed organisation, along with other vaguely worded charges.

See report by Human Rights Watch

 

 

 

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

 

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.

 

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