This week’s charivari of legalities and illegalities includes a slapdown for Elveden, a shakeup for Tower Hamlets, a commercial appraisal of social media accounts and yet more tales of a thousand and one rights (and wrongs) from abroad.

UPDATED 4 May

Operation Elveden – prosecution or persecution?

CPS slammed for charging journalists with conspiracy to commit a 13^th century offence

Earlier this month the Crown Prosecution Service reviewed and reversed its decision to proceed with prosecutions for conspiracy to commit misconduct in public office against nine journalists including Any Coulson, the former New of the World editor, and Clive Goodman, the paper’s former royal editor. The decision came after three other journalists were found not guilty by a jury, and the conviction of another journalist was overturned by the Court of Appeal.

Misconduct in public office is a common law offence triable only on indictment. Notwithstanding its antiquity (it is said to date, like this image, from the 13^th century), its coverage in law reports seems to begin in the late 16^th century with Crouther’s Case(1599) Cro Eliz 654. Its subsequent development was discussed in Attorney General’s Reference (No 3 of 2003) [2004] EWCA Crim 868; [2005] QB 73, paras 32ff.

While it may be suitable as a charge against a police officer who accepts money for doing, or not doing, his job, or passing stories to the press in breach of confidentiality or some other law, it seems harder to justify in relation to the conduct of a journalist, in paying the officer for information for use in journalism in the public interest, or even in which the public is merely interested, and to do so by way of a conspiracy rap.

The law was reviewed by the Court of Apeal in R v Chapman and others (formerly R v ABC) [2015] EWCA Crim 539, [2015] WLR(D) 146 which concerned a former prison officer, who had supplied information to the press, his partner, into whose account the money had been paid, and a journalist who had written up the story. Their convictions for, respectively, the offence of misconduct in public office, for aiding and abetting the same, and for conspiracy to commit the same, were all quashed by the Court of Appeal. In its judgment, the court said, para 36:

The jury must, in our view, judge the misconduct by considering objectively whether the provision of the information by the office holder in deliberate breach of his duty had the effect of harming the public interest. If it did not, then although there may have been a breach or indeed an abuse of trust by the office holder vis-a-vis his employers or commanding officer, there was no abuse of the public’s trust in the office holder as the misconduct had not had the effect of harming the public interest. No criminal offence would have been committed. In the context of a case involving the media and the ability to report information provided in breach of duty and in breach of trust by a public officer, the harm to the public interest is in our view the major determinant in establishing whether the conduct can amount to an abuse of the public’s trust and thus a criminal offence.

Commenting on that judgment this week, Michelle Heeley, on Halsbury’s Law Exchange said the court “effectively created a defence of public interest” in Chapman’s case, “just as many journalists had argued all along”.

She concludes:

Should this law have been used to prosecute the journalists?

Clearly not; the Court of Appeal judgment is critical of the CPS and its use of a 13^th Century law. Juries have rightly been slow to convict any journalist just doing their job in exposing wrongdoing in the public sector. If this law had been enforced as the CPS wished, the MPs expenses scandal would never have come to light, the Hillsborough Inquiry would not have happened and myriad stories unearthed by whistleblowers and published by investigative journalists would have been buried.

See also: Joshua Rozenberg in The Guardian Elveden prosecutions erred by treating journalists and their sources the same

Image source: though it has the style of Edward Lear, it’s actually a Welsh judge, from 13th century, depicted on the home page of the Welsh Legal History Society/Cymdeithas Hanes Cyfraith Cymru, where it is reproduced by permission of Llyfrgell Genedlaethol Cymru/The National Library of Wales. To whom we say: Diolch yn fawr! (Thanks very much, tr via Wikibooks.)

Tower Hamlets election reversal

Rig out the old, rig in the new

Another case that might have been cast as persecution rather than prosecution is the petition brought by four individuals in the Election Court against Lutfur Rahman, the Mayor of Tower Hamlets, alleging electoral fraud and intimidation. Rahman’s political career and the local elections in Tower Hamlets where until recently he appeared to rule supreme, are subjects that seem to provoke strong, starkly opposed views.

Almost a year ago the Guardian published an opinion piece (by columnists Richard Seymour and Ashok Kumar) suggesting that similar allegations (made by rival councillors) were little more than a smear campaign against a popular democratically elected politician: The smear campaign against Lutfur Rahman is an insult to democracy

However, last month Rahman was actually found guilty of many of the allegations against him, after a hearing in the Election Court, by Commissioner Richard Mawrey QC, in Erlam v Rahman [2015] EWHC 1215 (QB). Summarising that decision, the Guardian now reported:

Police are considering whether to launch a criminal inquiry relating to the former mayor of Tower Hamlets after he was found guilty of multiple corruption allegations by the high court and kicked out of office.

The report continued:

Lutfur Rahman and his supporters were found to have used religious intimidation through local imams, vote-rigging and wrongly branding his Labour rival a racist to gain power.

Rahman, who has been banned from seeking office again, was also found to have allocated local grants to buy votes. He was ordered to pay immediate costs of £250,000 from a bill expected to reach £1m.

Elsewhere, the Guardian described the judgment of the Election Court as “wholly devastating”. In an another columnist’s opinion piece, that of Nick Cohen, (Tower Hamlets: how a dictatorship flourished in the East End) Rahman was castigated for “the way he corrupted leftwing values”, using accusations of racism against his critics and thereby playing on their and the media’s inhibitions and insecurities and forcing them to self-censor their criticisms. Cohen noted how, although the issue was covered by Private Eye, the BBC and the Telegraph,

with honourable exceptions, London’s leftwing press ignored the stink in its own backyard and dismissed the accusations against Rahman as evidence of a “deep substrate of” – you guessed it – “racism”.

Having hosted such a wide range of views in its pages, the Guardian made its own views crystal clear in an editorial entitled The Guardian view on Lutfur Rahman: ethics must trump ethnicity. The case was, it said,

a damning criticism of the inadequate ways in which British democracy defends itself against fraud, demagoguery and corruption…

The picture of Tower Hamlets politics that emerges here discredits almost everyone involved.

Others stepped forward to add their voice, including the UK Press Gazette, (Downfall of vote-rigging mayor Lutfur Rahman a ‘victory for journalism’ which also exposed local media corruption) highlighting the role of journalists, and in particular a blogger, Ted Jeory, who set up his Trial By Jeory blog in the face of the apparent failure of local newspapers to report on or investigate the allegations of election rigging.

The judgment

You can read the full judgment on BAILII here. It includes some interesting commentary on the role of election judges, citing R (Woolas) v Parliamentary Election Court [2012] 1 QB 1; [2010] EWHC 3169 (Admin). The commissioner says, at paras 18-19, that the answer to the criticism usually voiced in terms of ‘unelected judges unseating democratically elected politicians’, is that the jurisdiction is a statutory one, imposed on a reluctant judiciary in the 19th century, and justifiable on the basis that

if, as Parliament believed, and has continued to believe, politicians cannot be trusted to resolve election disputes fairly, then who is left but the judiciary?

He also discusses the “combined adversarial and inquisitorial nature of an election court” at paras 39ff, and (at paras 148ff) the offence of “undue spiritual influence” under section 115 of the Representation of the People Act 1983 (re-enacting an historic provision originally designed to deal with the baleful influence of Catholic priests in 19th century Irish elections, apparently).

Quite a slog to read the whole judgment, though, so for an outline view, The Wharf (which describes itself as “the leading newspaper in Canary Wharf and the Docklands”), has a handy summary.

Update / fallout

Rahman has vowed to appeal, and there is now talk of a claim for judicial review. (Some confusion as to procedure?) The soft spot against which criticism of the judgment is focused seems to be the (bound to be controversial) issue of “spiritual” undue influence (which under s 115 of the 1983 Act must involve a threat of ‘spiritual harm’).

Canon Giles Fraser in The Guardian: The Lutfur Rahman verdict and the spectre of ‘undue spiritual influence’

Martin Downs on the UK Human Rights Blog: Spiritual Injury voids Mayor’s Election

Commercial law

Status of social media accounts as business assets

A man in Texas has been detained for refusing a federal judge’s order to turn over the password to the Facebook and Twitter accounts of his former gun store and shooting range, Tactical Firearms in Katy, reports the ABA Journal. The former owner, Jeremy Alcede, said the accounts were personal and not assets of the bankrupt business, and he continued them under his own name. The unusual case is one of the first in which a bankruptcy court has classified social media accounts as property of a business, the Houston Chronicle says.

That may be so, but my researches (see below) indicate that it is not the first in which the ownership of a Twitter account created and maintained in association with an employer’s company, and then renamed, has been the subject of ownership proceedings: see PhoneDog v Kravitz (No. 11-03474) (N.D. Cal. Nov. 8, 2011), [judgment pdf here].

Where a social media account has accumulated lots of followers, it must have a value, both as a promotional tool and as something in which goodwill inheres, and accordingly should be treated as a business asset. That seems uncontroversial, but the question of how it should be valued may be less of a no-brainer.

Source and further links on the Tactical Firearms case: ABA Journal: Man is jailed for refusing to turn over Facebook and Twitter passwords in business bankruptcy case

See also (with a bit more law, and a riotously prolix headline) LexisNexis Legal Newsroom: Tweet All About It: U.S. Bankruptcy Court Rules Business Social Media Accounts Are Property of Debtor LLC’s Bankruptcy Estate, Not Individual LLC Members

Copyright status of social media accounts

Hat tip to Margaret Ryan, of Phillips Ormonde Fitzpatrick, for her article reproduced on Primary Opinion, on Copyright implications for Social Media and Internet Service Providers, from which I got the bit about the Phonedog case used in the story above. This is a good article focusing on three social media platforms: Facebook, Twitter and LinkedIn.

Trade marks not insults

Also of interest, on Primary Opinion, as Editor’s Pick, is this information piece on Disparaging, Offensive & Scandalous Trade Marks. A good read which, however, sadly omits any reference to the decision of the Trade Marks Registry refusing a declaration of invalidity in FCUK Trade Mark (Woodman v French Connection Ltd) [2007] RPC 1, and the entertaining discussion of the same topic therein by Richard Arnold QC (as he then was – now Arnold J), sitting as the appointed person and cussin’ like a (judicious) trooper.

Recent publications

Cardiff Law School: Transparency in the Court of Protection – Report on a Roundtable

Read the full report PDF

See also: comment on Transparency Project blog by Julie Doughty.

Dates and deadlines

CALL – Moncton, New Brunswick, Canada

TURNING THE TIDE / RENVERSER LA MARÉE is the theme for the 52nd annual Canadian Association of Law Libraries/L’Association canadienne des bibliothèques de droit Conference 2015 which is being held this year in Atlantic Canada!

ICLR will be at Stand No 10. If you’re attending the event, do please drop by and say Hi to the team, who will be: Kevin Laws, CEO, Rebecca Herle, Head of Marketing and Operations, and Daniel Hoadley, Business Development Manager. There’ll be the chance to win an iPad in a prize draw.

Legal education and access to justice – Nottingham Law School

The role that legal education has to play in access to justice is to be discussed at an international conference to be held by Nottingham Law School’s Centre for Legal Education at Nottingham Trent University on 19 – 21 June 2015. As part of the conference, dean of Nottingham Law School, Professor Janine Griffiths-Baker, who took up the position in January this year, will give a lecture entitled The good, the bad and the ugly: lawyers in film and fiction.

For further information or to book a place please visit the Nottingham Law School website.

Legal walks diary

If you talk the talk (about access to justice), shouldn’t you also walk the walk? Here is a complete list of forthcoming legal walks, going up to the ominous sounding Survival of the Fittest on 21 November, via the Access to Justice Foundation.

Parish news

The University of Law and the University of Exeter launch ground breaking collaboration

As a result of what may come to be seen as a pioneering collaboration, students planning a career in law will now be able to complete both the academic stage of their training and the Legal Practice Course (LPC) at the University of Exeter, which will host the course provided by The University of Law (ULaw) on its Streatham campus. Click here for further details.

Pupillages falling

According to figures released by the Bar Standards Board the number of pupillages being awarded has fallen fairly dramatically, by about 23%. However, the BSB say this is partly explained by a change in the rules, permitting earlier recruitment by training organisations. The Bar Council said the fall was also explained by the fall in work for the independent Bar, in consequence of cuts in public funding. The total number of barristers remained largely unchanged. Full story, The Gazette

Law (and injustice) around the world

Indonesia

Executions for drug smuggling – 8 dead, 1 reprieved

There was outrage as Indonesia finally carried out the long-announced death penalties for drug smuggling of eight individuals, a Brizilian, two Australians, four Nigerians and an Indonesian. A Filipina woman, Mary Jane Veloso, won a dramatic last minute reprieve, after the alleged human trafficker whom she claimed had set her up as a mule, surrendered to Philippine police.

United States of America

Baltimore protests

Protests in Baltimore following death in custody of Freddie Gray, a black arrestee: this has become a familiar story. For a useful primer, see Vox: The Baltimore protests over Freddie Gray’s death, explained

For background: see Vice, David Simon (Creator of Baltimore-based TV series, The Wire) speaks about the issues in Vice, Where the Baltimore police went wrong

SCOTUS: Judges standing for election may be prohibited from appealing for campaign funding

The unelected judges of the US Supreme Court (SCOTUS) have ruled, by a 5-4 majority, that states may prohibit candidates for elected state and local judgeships from making personal appeals for campaign contributions. Not all states prohibit campaign fund solicitation, but 30 do, out of the 39 who elect judges, including Florida, whence came this appeal after lower courts were split. In his dissenting opinion, Justice Scalia criticised the limitation on free speech.

Full story: Guardian

That’s it for now. (Check for updates in the next day or two.) Enjoy the week ahead, and don’t forget to vote in our 150 Years of Case Law on Trial poll, currently in its fourth period, from 1971 to 1995. Cases include Airedale, Gillick and Factortame.

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.

Weekly Notes: legal news from ICLR – 1 May 2015