Our first roundup of the Easter term includes chemical weapons, media law and data protection claims, immigration justice and injustice, and some older stories you may have missed over the holiday recess.
BBC facing Cliff edge
In the trial in the claim by Sir Cliff Richard against the BBC before Mann J in the High Court, the veteran entertainer told the judge he felt “forever tainted” following BBC coverage of a police raid on his home after a sex assault allegation in August 2014. Sir Cliff’s case is that the BBC’s coverage of the search was a very serious invasion of his privacy for which there was no lawful justification. South Yorkshire Police have already admitted liability for its unlawful conduct in confirming Sir Cliff’s identity to a BBC journalist and have paid damages of £400,000 to Sir Cliff, but want the BBC to contribute. There is a full report of the trial so far, via Inforrm’s blog, Day 1 and Day 2. (More to follow.)
If the BBC are covering the case, no doubt they will exercise more discretion and restraint this time. They maintain that their coverage included Sir Cliff’s denials and that it was all in the public interest. (And presumably not overcompensating for their want of safeguarding in relation to Jimmy Savile.)
IPSO under judicial review
A JR claim brought on the application of Jonathan Coulter will this week challenge the Independent Press Standards Organisation (IPSO) over its complaint handling procedure, including (a) its refusal to investigate complaints not brought by the individual(s) most directly affected and (b) allowing papers to publish misleading and inaccurate information so long as it appears in ‘opinion articles’. According to a case preview on Inforrm’s blog,
“30 people [including Coulter] complained in vain about articles in the Times and Sunday Times that misreported a meeting they had attended in the House of Lords. […] Their complaint said, in summary, that the articles unjustifiably represented the meeting as anti-Semitic in character. IPSO upheld one aspect of the complaint, but dismissed the rest. Coulter applied for a judicial review of IPSO’s handling of the original complaints. The High Court accepted the case for consideration last October, and it will be heard on 17th April 2018.”
There is also an article on the same blog by Brian Cathcart, on How IPSO cherry picks complaints.
The problem of IPSO refusing to investigate a complaint, even of inaccuracy (where it’s not supposed to matter) on the ground that it was brought by the ‘wrong person’ is one the Transparency Project has complained about in the past (see Response from IPSO to our complaint about the Daily Mail) , and it will be interesting for them and for us to see how this unfolds.
Right to delist spent convictions
In two actions heard together in public but subject to anonymisation, NT 1 & NT 2 v Google LLC  EWHC 799 (QB) Warby J gave judgment for one businessman with a spent conviction (NT 2) but not for the other (NT 1), in their claims to be delisted from Google’s search engine results in accordance with the Right to be Forgotten (RTBF) as identified by the European Court of Justice in the Google Spain case. (Google Spain SL v Agencia Española de Protección de Datos (AEPD) (Case C-131/12); EU:C:2014:317;  QB 1022, ECJ.) Additional claims were made for the tort of misuse of private information, in which again NT 2 succeeded where NT 1 did not.
The cases were the first to rely on the FTBF in this jurisdiction, perhaps because, as the Panopticon blog from 11 KBW points out, “taking on Google takes guts, money and an ability to overlook the risk of the Streisand effect”: NT1 + NT2 = Blogging to the Power of A Million (Words)
There is an early case comment on Inforrm’s blog: High Court orders “delisting” by Google in “right to be forgotten” case
And to help ensure the case is properly reported, the judge has issued a summary with the judgment via the Judiciary website.
We will add more case comments via the ICLR.3 index card for the judgment.
OPCW scrupulous over Skripal
On 13 April the British ambassador to Russia, Dr Laurie Bristow briefed the international diplomatic community on the UK government’s response to the OPCW report on the chemical used in the Salisbury attack. He said:
“Yesterday the Organisation for the Prohibition of Chemical Weapons published an executive summary of its findings following a visit to Salisbury by OPCW inspectors between 19 and 23 March. The report says that the analysis by 4 separate OPCW designated laboratories outside the UK, I quote, ‘confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured 3 people’.”
He went on to explain how, combining the OPCW findings with other factors, the UK assessment was “that Russia is highly likely to be responsible for the attack in Salisbury”, and is further supported by a letter from the UK’s National Security Adviser to NATO’s Secretary General.
Airstrikes on Syria
This is still unfolding as we write, but Parliament has been debating the question whether the UK government should have debated, perhaps even taken a vote in Parliament, before deciding to participate with other nations (USA and France) in airstrikes against the Syrian regime following its apparent use of chemical weapons against its own (rebel) population. The justification put forward by the governments concerned was the need to maintain the international prohibition against chemical weapons and to degrade President Assad’s chemical weapons arsenal and capacity to rebuild it.
For more on this, see:
Law Society Gazette: Joshua Rozenberg, Lost prerogative (UK military adventures should not require advance approval from MPs)
Obiter J blog: In the face of barbarism (1)
BBC: Marc Weller, Professor of International Law at the University of Cambridge, analyses the legal arguments: Syria air strikes: Were they legal?
House of Commons Briefing Paper No 8287: The legal basis for air strikes against Syrian government targets
Foreign criminal finally deported – Daily Mail stumped for words
Free Movement, the brilliant immigration law website, reports that the Court of Appeal has upheld the deportation of a fairly notorious Egyptian miscreant, Sherif El Gazzaz. As the post by Thomas Beamont explains, El Gazzaz is “well acquainted with the criminal law”, having been sentenced to three and a half years in a young offenders’ institution after committing an offence of violent disorder in 2004, and two months imprisonment for criminal damage after participating in the riots at Harmondsworth detention centre the same year. Finally, in 2013 he was convicted of possession of a firearm and ammo following his arrest on suspicion of cannabis possession. But in the last case he was unfit to plead during mental ill health. In July 2014, the Crown Court made a hospital order pursuant to sections 37 and 41 of the Mental Health Act 1983 — i.e. he was “sectioned”. Nevertheless, despite his mental health problems, attempts to prevent his deportation failed both in the Upper Tribunal in March 2015: El Gazzaz v Secretary of State for the Home Department (IA/08313/2012) and now (two years later) in the Court of Appeal  EWCA Civ 532.
In dismissing his appeal, the Court of Appeal has confirmed the strength of the presumption in favour of deporting foreign criminals. Section 117C(1) of the Nationality, Immigration and Asylum Act 2002 says ‘The deportation of foreign criminals is in the national interest’. Very compelling circumstances were needed to overcome that, and they were not to be found in this case.
Interestingly, given its cracked record reiteration of the notion that all a foreign criminal needs to do to stay in the country is have a cat, or something, the Daily Mail has overlooked this case since 2008, when it reported on the antics of El Gazzaz in the Harmondsworth rioting: see ‘Lack of Sky TV’ sparked immigrants’ riot at detention centre .
You’d think they might want to update their avid readers with the latest on the former teen rioter, his lavish legal aid funding, and his taxpayer funded trip back to the land of the Pharaohs – but no, not a peep. The only recent press coverage of the latest decision was in a local paper, Get West London: Egyptian criminal jailed for violent disorder over Hounslow teen death loses appeal against deportation
Windrush to judgment
Another excellent post from Free Movement is an explainer about the really distressing stories we’ve all been seeing on the news about long term residents and families who came to this country from the West Indies during the 50s as part of the so-called ‘Windrush generation’ (after the first ship which arrived from Jamaica in 1948), and are now being denied citizenship rights such as healthcare and pensions or even being threatened with deportation because their records are not all ship shape and Bristol fashion. (See, by Nick Nason, Windrush children: why Commonwealth citizens are being denied immigration status.)
The problem is that immigration laws have been ratcheted ever tighter in the intervening decades, and in the absence of paperwork to prove otherwise, some of these perfectly legal immigrants are being treated as though they were not, and face the ‘hostile environment’ aimed at illegal migrants.
With ghastly irony, the 50th anniversary Enoch Powell’s cynical and opportunistic anti-immigrant ‘Rivers of Blood’ speech fell this week. The BBC defended its decision to re-broadcast it as a historical document, and perhaps so people could see just how ghastly it was.
In the House of Commons today, righteous anger from some, and an awkward moment for the present and previous Home Secretaries.
My parents came here as citizens, now the #windrush generation are suffering inhumane treatment at the hands of the Home Office.
If you lay down with dogs, you get fleas!
This is a day of national shame: the PM and Home Sec must apologise! pic.twitter.com/gxqoSErU3o
— David Lammy (@DavidLammy) April 16, 2018
See also this update on Free Movement, by Conor James McKinney, What the Home Office is (finally) doing for the Windrush children
Advisory opinions from Strasbourg – but not for UK
The Law and Religion blog reports that France has ratified Protocol No. 16 to the European Convention on Human Rights, enabling higher courts designated by member states to seek advisory opinions from the ECtHR on questions of principle on the interpretation or application of the Convention to cases pending before them. As the blog post explains:
“The advisory opinions issued by the Court will be reasoned and non-binding – unlike those of the CJEU, which are binding interpretations of EU law. France was the tenth member state to ratify the Protocol, which was done in 2013, thereby triggering its entry into force on 1 August 2018.
The United Kingdom has neither signed nor ratified the Protocol so, presumably, the UK courts will not be seeking advisory opinions from Strasbourg.”
The relationship of the UK and the ECtHR is brought into sharp focus by a recent parliamentary research briefing, UK Cases from the European Court of Justice since 1975. This is a fantastic resource which lists all the tiny proportion of cases against the UK deemed ‘admissible’, in which the Strasbourg court has accepted the application and made a decision. Most applications are deemed inadmissible and therefore not examined on the merits.
According to the Court’s statistics, there have been 526 judgments concerning the UK up to the end of 2015. Of these, over half (305) found at least one violation of the European Convention on Human Rights, and about a quarter (132) found no violation.
Another Library briefing paper, CBP 5353, explains how to apply to the Court.
What have we missed over the break?
Why Criminal Justice Matters
Event, which took place at the RSA on Tuesday 10th April 2018, featuring the Secret Barrister (offstage) and a panel of experts (onstage) in discussion about the current state of our justice system. Introduced and chaired by legal commentator Joshua Rozenberg, with Penelope Gibbs of Transform Justice, Angela Rafferty QC, chair of the Criminal Bar Association, Jonathan Black, of BSB Solicitors, and Nazir Afzal, former Chief Crown Prosecutor for North West England.
You can watch (again) via YouTube
Knife crime statistics
The House of Commons Library published this briefing paper on 16 March. There’s been a spate of such attacks recently, and it has stoked up public concern. Figures appear to show a rise in this type of crime.
Fake News – EU
The EC high level expert group (HLEG) on Fake News has issued a report highlighting the problem and mapping out some policy principles and recommendations. There is a summary on Inforrm’s blog by Damian Tambini: Will veiled threats from the EU tackle the disinformation problem or can the UK get tough alone?
Civil Liability Bill
The Lord Chancellor David Gauke published the above piece of new legislation last month, which is the subject of a news report in Legal Futures: The clock starts ticking – Gauke publishes Civil Liability Bill
You can read the bill via the Parliament page.
Dates and Deadlines
Talk – Law Reporting and Open Justice in a Digital World
The Association of Women Solicitors in London is hosting a talk at the University of Law, Bloomsbury Centre, 14 Store Street, London WC1E 7DE on 17 April at 6:15 pm – 8:00 pm.
Click here for more details
Middle Temple – Survive and Thrive
How to feel like you have it all without doing it all: Tuesday, April 24, 2018 – 17:30
ALLA – 2018 conference
The Australian Law Librarians’ Association is holding its biennial conference in Darwin this time, from 2 to 4 May. ICLR will be going, in the persons of Paul Magrath and Paul Hastings. We’ll post something on the blog about it nearer the time. This is just to get all our many Antipodean customers all excited at the prospect of meeting us and hopefully enjoying a mix of work and play in the crocodile capital. Afterwards, we’ll be stopping in Sydney and Melbourne for some events co-sponsored with our sibling Law Reporting Councils of New South Wales and Victoria respectively.
Law (and injustice) from around the world
Right to marry upheld
The Law and Religion blog roundup has noted the decision of the Indian Supreme Court in Jahan v Asokan KM & Ors  India Sup Ct Crim App No. 366, setting aside a High Court order annulling the marriage of a 26-year-old student who had converted to Islam in order to marry.
The court strongly affirmed the constitutional right of individuals (under Article 21 of the Constitution) to choose their religious faith and their marriage partners. In the lead judgment, Misra CJI said that curtailment of individual choice in marriage was both a constitutional and a human right and that, though the girl’s father might feel that his right to protect the interests of his daughter had been transgressed, that could not be allowed to curtail the fundamental rights of his daughter “who, out of her own volition, married the appellant”.
That’s it for now. More next week. Thanks for all the tweets and links to useful blogs and other content, from which much of this is derived.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.