Category: Human Rights

Menacing Character: the “Twitter Joke Trial”

By now most people will be aware of the “Twitter Joke Trial” which involved the conviction of Paul Chambers (@pauljchambers) for sending a message of a menacing character via a public electronic communications network contrary to s.127(1)(a) of the Communications Act 2003. If you’re not aware of the facts they are set out succinctly in paragraphs 5 – 19 of the High Court’s judgement (link below).

This morning, at the Royal Courts of Justice in London, the Lord Chief Justice of England and Wales delivered the judgment of the Court in an appeal against conviction by Paul Chambers. This was the third time that Paul Chambers had sat waiting for an appeal judgment. The first appeal to the Crown Court was rejected and the second appeal, to the High Court, had to be reheard after the two judges failed to agree.

There has been a lot of comment and discussion on this case. Some of those who supported the conviction argued that it was necessary in light of the threat of terrorism that such “jokes” are taken seriously by the justice system so as to ensure public safety. Those who did not support the conviction were concerned about; inter alia, the affect on freedom of speech.

John Copper QC, leading Counsel for Paul Chambers, put forth a very convincing legal argument on the meaning of the word “menacing”. To do so they looked to another area of English law, Blackmail, which included reference to “menace”. Robert Smith QC, for the Director of Public Prosecutions, “submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances.” (Para 29) However, Mr Cooper argued “that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive.” (Para 29)

The High Court took the view that before being able to conclude that the message was of a criminal nature on the basis that it was of a menacing character, “its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent” (para 31). Paul Chambers had sent his message at a time when the public was concerned about terrorism and the High Court recognised that the Crown Court was understandably concerned about this. However, the Court’s judgment states at paragraph 31:

In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat.

The High Court pointed to the language and punctuation of Paul Chambers’ tweet as inconstant with the view that the writer had intended that the tweet to be or be taken as a serious warning.

The High Court also said (at para 32):

In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration.

The High Court looked at the way in which the airport discovered the tweet, the fact that it was treated as a “non-credible” threat by the airport authorities. They also considered the fact that the airport police took no action and that the speed of the process from discovery to Paul Chambers’ arrest was a sign of there being no real urgency. No evidence had been put before the Court that suggested even the most minimal upgrade to security following discovery of the tweet. The Crown Court, in considering the appeal, was wrong not to consider these factors as part of its decision.

The High Court also noted (para 33):

the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message

In essence, the staff at the airport were doing what they were obliged to do in order to comply with company procedures. They had no real discretion as to whether the matter should have been taken any further and so to place such a heavy reliance upon their reporting of the matter to the police was incorrect.

The High Court found that the reliance upon Paul Chambers’ response to a question in interview as to how some people might have reacted to his tweet as misguided. The High Court said that this failed to recognise “the care needed to approach such a widely phrased question in context.” (para 33) Some people, the High Court said, “included those who might lack reasonable fortitude.” (para 33)

The High Court concluded “that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” (para 34)

In short, when seeking to apply the menacing character element of s.127(1)(a) of the Communications Act 2003 it is necessary not simply to look to the dictionary definition of a menace, but to consider whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive by the message.

Comment

There is no denying that the tweet in question was not the most sensible thing to put out into the public domain. There was, and remains today, a public sensitivity around terrorism and security of the United Kingdom. However, I am sure we have all said things along the lines of “I’m going to kill x” or “I’m going to blow up y”. We have never really meant it and it will have normally been an expression of our frustration over a particular situation. The matter, when taken out of context can look a lot worse than it actually is. In this case, the context was important in understanding the meaning of the message.

The criminal law ought not to be covering situations unnecessarily and the approach taken by the court to this case previously was far too wide in nature. This was demonstrated, I thought, well by reference to Shakespeare’s “kill all the lawyers” line in Henry VI by John Cooper QC in his submissions to the Court on behalf of Paul Chambers.

This is a sensible decision that restricts the scope of s.127(1)(a) of the Communications Act 2003 to protect those who are making jokes or using colloquial language to express their frustration when using Twitter, Facebook and any other form of internet based social media that will come in the future.

The CPS has come in for a lot of criticism over their decision to prosecute Paul Chambers. For the most part, it’s probably unfair. They took a view that there was sufficient evidence for a reasonable prospect of conviction (based on a wrong interpretation of the law) and thought there was a public interest in prosecuting. One can understand why though given the terrorism threat in the UK. Misguided bomb hoaxes against an airport should be taken seriously by the police and prosecuting authorities. It was clear in this case though that this was not a bomb hoax and perhaps the CPS developed a blinkered view of the case and couldn’t get past thinking about terrorism.

Justice was, eventually, done though and the High Court has given a sensible decision that, one would think, the vast majority of right minded, sensible and level headed people would consider is correct.

Links
High Court’s Judgment in Chambers v DPP (pdf)
Chambers v DPP on BAILL I (web)
Communications Act 2003

Prisoners’ Votes

Today the European Court of Human Rights (ECtHR) issued its judgment in Scoppola v Italy (No.2), a case in which the United Kingdom was permitted to intervene by the Court. It was an important case for the United Kingdom as it gives direction as to just how far the ECtHR expects the UK to go to comply with the decision in Hirst v United Kingdom (No. 2).

Background

John Hirst, convicted of Manslaughter and sentenced to 25 years imprisonment, brought a case against the United Kingdom under Article 3 of Protocol 1 of the European Convention on Human Rights (ECHR). Article 3 of Protocol 1 provides for the right to free elections. Mr Hirst argued, successfully, that the UK’s blanket and automatic ban on convicted prisoners being able to exercise the right to vote was a disproportionate interference with his Human Rights. Since that judgment both the previous Labour Government and the current Conservative-Lib Dem Government have tried to ignore the judgment.

Last year the House of Commons had a free vote on the issue and overwhelmingly voted to maintain the ban in its current format. However, that will not permit the Government to ignore the ECtHR’s decision that the ban in its current form violate the Convention and must be changed. The Hirst (No.2) judgment has angered a lot of MPs and many in the country as well. There has been talk of unelected judges dictating to the UK. However, this rhetoric ignores that fact that the United Kingdom agreed to be bound by the decisions of the Court and that includes those that it doesn’t like.

Scoppola v Italy (No. 2)

In Scoppola the Grand Chamber of the ECtHR held that there had been no violation of Article 3, Protocol 1 of the ECHR. This was because, unlike the UK, Italy does not have a blanket ban on convicted prisoners voting. In Italy, the ban only affects those convicted of crimes against the State or the administration of justice and those service sentences of imprisonment in excess of three years.

The Attorney General, Dominic Grieve MP QC, appearing for the UK Government, successfully argued that States have a wide degree of discretion in what prisoners are allowed to vote. However, the ECtHR was resolute in its position that the UK’s current blanket ban is a violation of the Convention and must be changed. What this means for the UK Government is that while it will need to remove the blanket ban there is a wide margin of appreciation in how it complies with the judgment in Hirts (No 2) and others. The ECtHR has said that it could be up to judges to remove the right in individual cases or it could be by way of an application of law (i.e. a statute setting out which prisoners can and cannot get the vote).

The United Kingdom has six months to lay legislation before Parliament in order to comply with the judgment of the ECtHR. That means we can expect legislation to begin its way through the Parliamentary process no later than 23 November 2012.

Analysis

This is going to continue to be a thorny issue for the Government. They will be introducing this legislation against their own will, against the will of the majority of Parliament and against a very large section of the UK population. There is likely to be a significant amount of rebellion in the Commons as the legislation passes through. However, what is good for the Ministers is they have a great deal of cope of how they approach this question. It will not be the case (nor has it ever been the case) that murders and rapists will be given the right to vote (two categories of prisoners Mr Hirst has taken great pleasure in saying must get the vote following his case in Strasbourg). They will of course need to be careful that the change is properly considered and that due consideration is given to the seriousness of the offences committed and the length of sentence being served. These are two issues that it appears Strasbourg will look at when deciding whether the position on prisoners voting is compliant with the ECHR or not.

There are a number of solutions to this issue, some of which are more likely than others. The first would simply to be enfranchising all prisoners and leaving it at that. Another solution would be to enfranchise some and not others. Another solution might be to enfranchise all prisoners and leave it up to the sentencing judge to decide if a prisoner should have their right to vote removed while in custody.

The most likely solution will be the second described above. We will likely see an amendment to the Representation of the People’s Act extending the franchise to some prisoners. I suspect what we will see is all those serving 12 months or less imprisonment following conviction on a summary complaint being given the vote. That would appear to be sufficient to satisfy the ECtHR as it would give consideration to the length of sentence (implying that a sentence of more than 12 months denotes a serious crime) and the seriousness of the crime (only the more serious cases are dealt with on indictment, certainly in Scotland anyway). Such a solution would likely be more palatable to Parliament and to the UK population as well.

The problems do not stop with the question of which prisoners will get the vote. There are a great many procedural matters to overcome. It would unlikely be sufficient for the UK to amend the law, but then not really provide the logistics for making it happen. If that were the case what would have changed? There would still be an effective blanket ban on prisoners voting and we would be back in Strasbourg.

Will we see polling stations erected in prisons? Unlikely, prisoners will probably be entitled to vote by postal vote.

In which constituency would they be voting? It could rather skew the result in constituencies with prisons in them if that we where they would vote. What is likely to be the case is that the vote would be for the constituency in which the prisoner’s last known address was and in the constituency where the prison lies where the last known address is not known.

In short, when the United Kingdom goes to the polls to elect its representatives to the European Parliament in 2014 there will be a category of prisoners eligible to vote in those elections.

Criminal Procedure: Time to start from scratch?

Criminal Procedure in Scotland is broadly governed by the Criminal Procedure (Scotland) Act 1995. This Act sets out much of the way in which a criminal case is conducted from initial contact by the police with a suspect and/or witness through to the rules governing appeals against conviction and sentence.

The Act is incredibly out of date and has been amended on a number of occasions. The first major challenge to the provisions of the 1995 Act was the now infamous Cadder case which focused on sections 14 and 15 of the 1995 Act, and in particular the failure of the law to provide for a suspect detained under section 14 of the 1995 Act to have access to legal advice and representation. In that case the United Kingdom Supreme Court rejected the decision of the High Court in McLean v HM Advocate and held that the failure of the 1995 Act to provide for a suspect detained under Section 14 of that Act to have access to legal advice while in custody was a breach of Article 6 of the European Convention of Human Rights (ECHR).

The Cadder decision resulted in amendments being rushed through the Scottish Parliament which provided for, inter alia, the provision of access to a solicitor by a person detained under Section 14 of the 1995 Act before they were questioned by the police.

The Criminal Justice and Licensing (Scotland) Act 2010 made changes to the 1995 Act some of which have now come under scrutiny by the High Court. In Cameron v procurator Fiscal, Livingson the Appeal Court held that the amendment in question was a breach of Article 5 of the ECHR. The amendment in question was the insertion of paragraph (cb) into section 24(5) of the 1995 Act. Section 24(5) of the 1995 Act sets out the standard conditions for a person released on bail. The Court can add further conditions to that bail, but the standard conditions will always apply. Paragraph (cb) provided that as standard a person who was on Bail must do two things if reasonably required to do so by a Constable. Those things were (i) participate in an identification parade or other identification procedure; and (ii) allow any print, impression or sample to be taken from the accused. The remaining standard bail conditions are fairly, well, standard and cover things that one would reasonably expect such as not committing other offences, not interfering with witnesses, turn up at court when instructed to do so etc. However, the insertion of paragraph (cb) into the standard conditions is slightly controversial.

Previously such conditions as those found within paragraph (cb) would have been added by the judge presiding over the bail application. The Court would have to have been satisfied that such conditions were necessary. However, now anyone on Bail would be required to adhere to such conditions and they are quite invasive. Sample could cover anything from a urine sample, to a DNA swab to a blood sample, all of which are invasive procedures and normally if taken without consent may well constitute an assault.

In any event, this blog post is not about the latest decision per se, but is more about the 1995 Act. It is not fit for purpose. Criminal procedure in Scotland has fallen behind in terms of adhering to basic standards of human rights. Successive Scottish Parliaments and Administrations have failed to ensure that Scotland’s procedures in bringing offenders to justice and protecting the public comply with human rights.

The two pieces of legislation passed in 2010 to amend the 1995 Act, particularly the post-Cadder emergency legislation, are nothing other than sticking plasters over a rotting limb. What is required is an urgent, full-scale review of the 1995 Act and for it to be subsequently repealed and replaced with a brand new piece of legislation.

The review recently completed by Lord Carloway at the request of the Justice Secretary is a good starting point for this urgent and important piece of work. However, it is important that the 1995 Act is not merely amended with whatever recommendations are accepted from Lord Carloway’s report, but that the accepted recommendations form the basis of a brand new piece of legislation that aims to codify the current law (including the case law).

It is important that this review canvases the opinions of all criminal justice stakeholders from victims groups to criminal justice social workers, solicitors, Counsel, COPFS and anyone else who has an opinion. It’s important that criminal procedure keeps up-to-date with developments in human rights.

I do hope that in response to this latest judgment that the Justice Secretary and First Minister do not launch a hysterical attack against the judiciary and announce a serious attempt to look at criminal procedure in Scotland. I hope that they appoint a review team who are knowledgeable and experienced in the criminal justice system and that any review team is not confined to just judges and lawyers but that representatives from all the major stakeholders are present to ensure that we have a system that is fit for purpose and is beyond challenge from a human rights perspective.

Prison Suicides

Today the news carries reports of another young person taking their own life in custody. A 20 year old man who was serving a four year prison sentence at HMYOI Portland was found dead in his cell having hanged himself from the cell window on Saturday morning. As with all deaths in custody the Prisons and Probation Ombudsman will investigate the circumstances surrounding the death and make recommendations to the establishment as to how they can stop such tragic events happening again.

This sad death was the third young offender to take their life in YOI custody in the space of one week. In the last 22 years, 244 people under the age of 21 have taken their own lives in prison (on average roughly one person per month). This is a shocking statistic. Whatever the reason for them being there these young people have been in the care of the Government and as such the Government has a duty of care towards them. Surely now we are beyond the stage of having individual investigations into each death? Would it not be better if a proper investigation is carried out to see what can be done to reduce the number of suicides in custody?

People in prison may not generally get the sympathy of the public. Some might go so far as to say “good riddance” to a person who kills themselves in custody. However, that would be an utterly disgusting approach to take and anyone who does adopt such a stance is not (one would hope) representative of the UK population.

What caught my eye in the BBC News particle about the suicide was that, despite the young man having known psychiatric issues and being on anti-psychotic medication, HMYOI Portalnd does not cater for psychiatric issues among its inmates. That raises two questions. First, why does it not cater for psychiatric issues among its inmates. The establishment has a duty of care towards each and every single person held in its custody regardless of their medical background. Secondly, why was a person with known psychiatric issues held in an establishment that does not cater for such prisoners?

Generally, the suicide rate in the UK prisons is considerably higher than that of the general population (up to about 15 times greater). That is, quite frankly, a shocking statistic. Simply because a person has committed an offence that has placed in them in prison does not mean that we should care any less about them than we would if they were not an offender in custody. The Government has a duty of care towards all in its custody and it is about time that they looked seriously at how they can reduce the numbers of people successfully or attempting to take their own life.

Culture, Practice and Ethics of the Press

Lord Justice Leveson was appointed in the summer to chair an inquiry under the Inquiries Act 2005 into the “Culture, Practices and Ethics of the Media”. The inquiry came after the extraordinary revelations of illegal practices at one particular weekly newspaper. That newspaper, the News of the World, is no longer in publication after it was revealed that the paper was involved in regularly breaking the criminal law by way of hacking into the private voicemail messages of people in order to get stories. Initially it was asserted that the practice was confined to one rouge journalist and one private investigator, both of whom were prosecuted for offences relating to phone hacking.

Since the fresh revelations over the summer various investigations and inquiries have been taking place. The Metropolitan Police are investigating the wider issues of phone and e-mail hacking, Strathclyde Police are investigating similar matters in Scotland at the direction of the Lord Advocate, House of Commons select committees have heard evidence on the matter, including from Rupert and James Murdoch, and much has been said and written in other forums.

The inquiries by Lord Justice Leveson and the House of Commons select committee have had to tread very carefully in order to safeguard any potential future prosecutions that result from the investigations by the Metropolitan Police and Strathclyde Police. The Police have suffered their own criticism though. The Metropolitan Police suffered some quite high profile casualties as a result of its failure to investigate the issue properly and fully in 2006 when it first came to light and Glenn Mulcaire was given a custodial sentence for phone hacking.

At the time the News of the World insisted that it was confined just to one journalist and to a private investigator therefore limiting the scandal to the Royal Family. However, as time has passed it transpired that the practice was, at the News of the World at least, quite widespread. It is understood that the paper hacked into the voicemail of Milly Dowler deleting messages from it when it became full. This gave the police and more importantly her parents, family and friends a false sense of hope that she might still be alive. The public, quite rightly, condemned this particular use of phone hacking and were quite clearly disgusted by it.

The evidence that has been given to the Leveson Inquiry has been rather interesting and has raised some important points and issues. It has, however, given us an insight into the mind-set of the tabloid press. Some of the most controversial evidence given to the Leveson Inquiry to date came from a former News of the World journalist, Paul McMullan. It’s hard to select just a few of the things that Mr McMullan said during his evidence that caused one to raise an eyebrow as there are so many examples from which to choose. However, as I have identified above the hacking of Milly Dowler’s phone I believe that this would be a good starting place to look at Mr McMullan’s evidence.

In respect of the hacking of Milly Dowler’s mobile telephone voicemail messages Mr McMuallan appeared to argue that the hacking was in fact a good thing. His argument was based upon the premise that the police can get nothing right and that their inability to investigate properly means that journalists need to fill the gap and investigate for them. This, I submit, is a false presupposition to have made. Yes, there are times in which the police do not investigate things properly. Indeed it probably happens fairly frequently. Senior officers can get drawn down lines of inquiry that they believe are the correct ones and ignore others resulting in innocent people being caught up in the wake of the investigation, or the investigation stalling, evidence being lost and the police without any further direction to take the investigation in. However, I would suggest that failings on such a grand scale, particularly in high profile cases, are really quite rare.

The press, no matter how well meaning they might be, should not be engaging in any activity that frustrates a police investigation. The Milly Dowler example is a good one for illustrating this point. The actions of those involved in the hacking were not only illegal, but because the messages were being deleted it brought a false sense of hope to the family and friends that Milly might still be alive, after all he voicemail messages were clearly being listened to.

Mr McMullan’s evidence to the inquiry was, in general, just as shocking as it was revealing. It appeared that he had no moral or ethical compass whatsoever and took the view that anything that was necessary to get a story was acceptable. Mr McMullan also failed to appreciate that there is a significant difference between what the public are interested in and the public interest. Simply because the public are interested in something doesn’t mean that they should in fact be given it on the pages of a newspaper.

There are some really quite perplexing problems to deal with here. It is clear that the press need to be ethical in the way that they carry out their duties. While the rule of law is important it is not inconceivable that a story of such great public interest cannot be obtained by any legal means. It would therefore be, in my view, appropriate to act outside of the law in order to obtain the evidence needed to reveal it. It should not, however, be a regular practice and should be reserved for only the stories which carry the gravest public interest considerations. The principle question in my view should be that in all the circumstances was the infringement of the law fair, reasonable and justified?

The word “regulation” has been bandied about an awful lot since the fresh revelations of phone hacking over the summer months. Principally it would seem that the argument that as the press has failed to self-regulate itself that an external regulator must now take over this role is becoming a somewhat popular one. I would fundamentally disagree with this proposition for two main reasons. Firstly, what is really meant by “the press” is “certain sections of the press, in particular the tabloid press”. As has been pointed out much of the press is more than capable of abiding by and upholding basic moral and ethical standards. Not all newspapers, for example, have been involved in the interception of voicemail messages, not all newspapers regularly engaged in “blagging” information, not all newspapers regularly employed the services of private investigators. We are, in effect, looking at one small section of the press and it is important to bear this in mind. My second reason for disagreeing with this proposition, and it is by far and away the most important, is that in a free and democratic society it is both necessary and desirable to have a free press.

Countries of whom the UK is often critical in terms of their adherence to commonly understood standards of democracy and human rights will often be ones where the press is heavily regulated or censored. It would be highly undesirable to follow those countries down the routes of licencing journalists and subjecting them to regulatory regimes.

There are, of course, laws in place to protect the morals and decency in society. It cannot be the case that journalists have a “get out of jail free card” by virtue of their chosen profession when it comes to breaking the civil and criminal laws of this country. Indeed the same would be applicable to the organisations that employ journalists.

When a journalist breaks the criminal law there is a balancing test that must be carried out. That balancing test is essentially looking at two competing elements of the public interest. First is the public interest of the story which they had written as a result of obtaining evidence by unlawful means. This then has to be balanced against the public interest in upholding the rule of law and prosecuting those alleged to have broken the criminal law. It is for prosecutors to decide, in the first instance, whether the public interest in prosecuting the journalist for their alleged infringement of the law outweighs the public interest surrounding the story that they broke.

Of course there are other factors that would need to be considered in any prosecution decision. Firstly, it would have to be considered whether the evidence obtained illegally could have reasonably been obtained in a way that was legal? Have all reasonable attempts been made to obtain the evidence legally?

The issues are not just strictly confined to the auspices of the criminal law. The issues surrounding press practices, conduct and ethics find themselves in the territory of the civil law also. Perhaps most acutely in terms of civil law areas are those of defamation and privacy. The latter of these two has proved to be rather controversial in recent years.

There is a fundamentally understood right to privacy. All people are entitled to a private and family life and there are elements of our lives that we all wish to keep private. That is not necessarily because, as Mr McMullan would have us believe, we are paedophiles or are up to no good. Privacy is not, as Mr McMullan would have us believe, only the space needed for people to do bad things. Yes, undoubtedly some people do get up to bad things in their private life. However, very few of us would be happy with, as an example, a copy of our full medical records published with nothing redacted.

There is a need, therefore, to consider carefully when to begin publishing details of a person’s private life for anyone to read. I remain entirely unconvinced that much of what has been published under the guise of being in the public interest in relation to people’s private life is indeed within the public interest. I rather suspect that it is more likely to fall into the category of things that the public are interested about (although I personally fail to understand why).

There are of course innocent people to consider in these situations. Anyone who has experienced the breakdown of a relationship because of an unfaithful partner will know the pain and suffering that it causes not only the other partner but any children who also happen to be involved. Imagine for a moment that your partner has an affair with another and the way in which you discover is by seeing it on the front page of the Sun. Imagine for a moment an incredibly painful and emotional time in your personal life being splattered across the pages of the Daily Mail. What if you opened the pages of the Daily Record and saw your partner kissing another person? Nobody wants that to be in public domain for everyone to read.

When we talk about privacy in these cases we are often talking about not only the privacy of the celebrity who has allegedly had the affair but also the privacy of their wider family. There appears to me to be little thought given to that dimension by certain sections of the British press.

I remain entirely unconvinced that a person’s apparent hypocrisy as portraying themselves as a faithful family orientated person necessitates the divulgence of the details of an alleged affair into the public domain. There might be, on some occasions, a public interest in such situations being divulged into the public domain, but I suspect that they would be few and far between and cannot think of any of the recent “kiss and tell” stories that have been divulged this year that would be sufficiently serious enough to justify their being published.

I am not suggesting that people’s private lives are completely off limits. There must be a public interest in interfering with that right though. An example might be the revelation that former Home Secretary Jacqui Smith had claimed for adult-rated films on her expenses. On its own the nature of what was claimed for might not have been in the public interest but in the wider scandal in which it came to light that might well have, and in my view did, shift the public interest balance in favour of identifying them as adult-rated.

I have written on this site before on the question of super-injunctions (those posts can be read here and here) and I do not want to spend much time considering them here other than to say that they are somewhat of an anomaly given the way in which social media is influencing the way in which people get their news. There are also jurisdictional issues to consider. An example would be the case of CTB and how a Scottish newspaper could openly name CTB while those in England could not.

Injunctions, or in Scotland interdicts, clearly do have their place. They are granted only after careful consideration of the evidence placed before a court. Evidence which people openly flouting them and breaking them on Twitter, or indeed on the floor of the House of Commons, probably have no knowledge.

It will certainly be interesting to see what Lord Justice Leveson proposes in his final report and just what will come to light as he continues his inquiry and as the police investigations continue. However, I would lament proposals for regulation of the press by way of an “independent regulator” as that would begin to take us down a path that endangers free speech and expression. Perhaps, as has been suggested by some already, that tough financial penalties for those press organisations who wilfully flout privacy rules in their quest for a story without good justification. The idea of punitive damages may not be such a bad one if it were to avoid going to down the path of regulating the press. I am only glad that it is not I who has been tasked with brining proposals forward on this issue because if the wrong proposals are brought forward it could have seriously damaging and long-lasting effects on our democracy.

Injunctions, Super-injunctions and Privacy: Part 2

Part 2 of my blog series on Injunctions, Super-Injunctions and Privacy will focus on the issue of Super-injunctions. I think it would be prudent to once again state what an Injunction is and what a “super-injunction” is as there is a lot of confusion, especially in the wider mainstream media as to what each is.

An Injunction is an order issued by the Court that prevents a person from doing a particular act. So that could be naming the victim in criminal proceedings involving children under 16 or the victim in a rape case. Moving away from criminal law it could be an injunction to prevent an anticipatory breach of contract or to prevent the printing in the media of untruths about a person.

A super-injunction is an injunction that has an additional layer of protection attached to it whereby the media cannot even report that the injunction exists. It is not one where anonymity has merely been granted, that is an anonymity injunction. The media are free to report about injunctions that have been granted where one party remains anonymous (provided that they do not break the terms of the injunction such as revealing who the anonymous individual is), they are not free to report that a super-injunction exists. The wider public should not know that one of these injunctions exists.

In the case of the footballer whose name is widely known but in terms of the injunction is only known as CTB this was not a super-injunction. Had it been a super-injunction the media would not have been able to report that an injunction had been granted. The injunction merely prevented the media from revealing the name of the footballer in question.

Having read the judgment of the Court and the reasons why such an injunction was granted I must say that I find no real reason was to why the Injunction should not have been granted. The narrative of the case suggests that the allegations that appeared in the paper were false and indeed that blackmail (a criminal offence) may have occurred. The media cannot be allowed to print libellous and defamatory stories about a person. The case of CTB is not a case where the footballer in question has done something wrong and is now trying to prevent it from coming out in order to protect his reputation, but rather is preventing what appear to be libellous statements about him being printed.

I am in no doubt in my mind that the ability of a person whether they be in the public eye or not to prevent what they deem to be libellous and defamatory information about them from being printed is a good thing. How would you feel if the papers suddenly printed a story about you that suggests you acted unfaithfully towards your spouse, that in your mind is untrue and the evidence that exists was staged and part of a blackmail plot? One would imagine you would want to do everything in your power from stopping such a story being printed. Granted, the chances of that happening to someone outside of the public eye are remote, but it could be demonstrated equally as well with any number of more realistic situations for the average member of society.

The problem I have with super-injunctions is the secrecy of them. They cannot be open to scrutiny as they are entirely secret. They go beyond granting anonymity to the Claimant and mean that nobody outside of the parties, Counsel, Solicitors and Judge should know of its existence. I am sure there are perfectly good reasons for such injunctions to exist in terms of National Security and such like, but when it comes down to protecting the private life of individuals in the public eye I believe that is a step too far. They prevent, for example, a party to the injunction raising the issue with their elected representatives should they wish representation by their MP or local councillors.

As I have said in part 1 and will explore in more detail in part 3, privacy is essential in our lives. Each one of us, whether we are in the public eye or not, are entitled to some level of privacy. The right to a private and family life is important, but you will just have to wait for my thoughts on that.

[Part 1]

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NOTE: While the name of the footballer in question is in the public domain, the injunction remains in force. Any comments posted on this blog that name the footballer in the CTB v NEWS GROUP NEWSPAPERS case will either be deleted or redacted. This blog does not endorse the wilful breaching of court orders.

Fraser v HM Advocate [2011] UKSC 24

The disappearance of Arlene Phillips from her home town of Elgin in 1998 has become one of Scotland’s most notorious cases and today the man convicted of her murder, Nat Fraser, has had his appeal to the Supreme Court allowed on Human Rights Grounds. The UK Supreme Court has remitted the decision to the High Court for consideration as to whether to authorise a fresh appeal, as this decision is always taken by the High Court of Justiciary prior to quashing a conviction. Technically the UK Supreme Court has authority under rule 29(1) of the Supreme Court Rules 2009 to grant authority to the Crown to mount a fresh prosecution, but it seems keen to infringe upon the workings of the High Court of Justiciary in its appellate function as the court of last resort in criminal matters in Scotland as little as possible and decided that the High Court was the best place for the question as to whether authority for a fresh prosecution should be granted or not to be taken.

Lord Hope, in delivering the decision of the UK Supreme Court said:

This matter is best dealt with by the High Court of Justiciary. So the case will be remitted to that court for this question to be dealt with, and it will be for that court to quash the conviction.

We wish to add two things. First, it will be appreciated that it is of the first importance that the media should refrain from any discussion of the detail or strength of the evidence against the appellant until the issue of whether there is to be a retrial has been resolved.

The decision that we have taken in these proceedings, and the reasons for it, may be published. But those whose programmes and publications are available to the public in Scotland must not do or say anything that might prejudice the prospects of a retrial, if that is what the High Court of Justiciary decides to authorise.

There is no denying that withholding evidence by the Crown which weakened what they saw as the cornerstone to their case renders a trial unfair. The Crown evidence was unable to be tested properly as a result of that and this puts the defence on the back foot. Exactly what the outcome of the trial would have been had the evidence of PC Lynch and WPC Clark been heard is something one can only speculate on, and something which one must not do while the possibility of further criminal proceedings exists, certainly not in any public forum that may prejudice any future criminal proceedings that may be taken by the Crown.

Authority from the UK Supreme Court is clear that the refusal to hear a devolution minute by the Court of Appeal is a determination of that issue and providing that refusal is made by two or more judges of the Court of Appeal can be appealed to the UK Supreme Court under Schedule 6 of the Scotland Act 1998.

Unlike in Cadder v HMA, the UK Supreme Court has made a determination that leaves the High Court of Justiciary no other option than to quash the conviction of Nat Fraser. By deciding that the original trial was unfair it results in a Miscarriage of Justice. The decision of Cadder still required the High Court of Justiciary to look again at the safety of the conviction in light of discounting evidence obtained under police interrogation (a matter that can only be examined under section 106 of the Criminal Procedure (Scotland) Act 1995 and one over which the Supreme Court clearly has no jurisdiction).

This will, once again, no doubt raise the questions that surfaced after the decision in Cadder over the exact role that the UK Supreme Court has in the Scottish Legal System. The High Court of Justiciary has always been the final court of appeal in Scottish Criminal matters, and that position is what the Scotland Act 1998 intended on keeping (having expressed nowhere explicitly a right to have appeals under s.106 of the 1995 Act examined by the UK Supreme Court). However, the UK Supreme Court operates a constitutional function which means that matters that arise relating to the UK’s Constitution can be appealed to that Court.

Is the ability of the UK Supreme Court to determine devolution minutes in relation to Scottish criminal cases infringing more and more upon the position of the High Court of Justiciary as the Court of last resort in Scottish Criminal Law? Some would argue yes, but it is hard to see how the position could be any different with Scotland remaining part of the United Kingdom. Devolution minutes are difficult as while they relate only to EC Law or to the Human Rights as granted by the European Convention and enacted by the Human Rights Act 1998 their applicability is to all areas of Scottish Criminal Law and that means appeals to the Supreme Court by the “backdoor” are possible in any case where Article 6 may have been infringed.

It really is a difficult point indeed.

The full judgment of the UK Supreme Court in the case of Fraser v HM Advocate can be found here.

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NOTE: As there may be fresh criminal proceedings in this case please do not post any comments on this blog that could interfere with those proceedings. That includes, but is not limited to, any proclamations of Nat Fraser’s guilt or innocence and the strength or weakness of the Crown case. It is important in the interests of justice that due process is allowed to take place.

Injunctions, Super-injunctions and Privacy: Part 1

There has been a lot in the media of late over so called super-injunction. As is the case with all legal stories the newspapers continually distort the true picture to whip up a frenzy which results in Parliament looking at what is essentially a non-issue. I am going to attempt to add my voice to the many already out there on the internet.

An injunction, or if you are in Scotland an interdict, is a court order which prevents someone from doing something. For example, one could seek an injunction against one’s neighbour to prevent them from using their property in a way that prevents one from enjoying one’s own property or to prevent a newspaper from printing untrue stories about oneself. A super-injunction, and I’m not aware of there being any “super-interdicts” so this would appear to be an English only issue, is a special type of injunction that the wider public are not supposed to know exists – that is what makes it “super”.

The case of CTB v Imogen Thomas is not an example of a super-injunction, but rather the bog standard injunction described above. It does not have the extra layer of protection that meant its very existence was not supposed to be known by the wider public. Injunctions cover a wide array of things and could be used to prevent doctors from carrying out a medical procedure to being used as a pre-emptive way to prevent a breach of contract from occurring. They do not exist, as the media suggest, purely to stop celebrities from having details of their private lives splattered across the pages of a national newspaper (although that is one way they can be, and have been, used).

Injunctions and super-injunctions, particularly relating to celebrities, have sparked a debate on privacy, which has really only been of concern to those working within the English legal system. When considering the issue of privacy one must turn to look at section 12 of the Human Rights Act 1998. This places upon the court a clear burden to weight the public interest with the right to free expression. It has been said often before that what interests the public is not always the same as what is in the public’s interest. While the public very well may be interested in which celebrity is having an affair with who (and personally I cannot understand why that would be of any interest to anyone other than the parties involved) is it really in their interest to know? What benefit is there to the public knowing that Celebrity A is having an affair with Celebrity B? It is not for me to attempt to define what “public interest” means; that is either down to the Court or Parliament to do. However, some examples of what I would consider to be in the public interest would be:

A Government Minister acting corruptly in the exercise of his duties as a Minister – clearly there is benefit to the public of knowing such information and a Government Minister in such a position should not be able to prevent details of their corrupt actions being revealed to the wider public by way of a court order.

An MP acting in breach of the criminal law – I think that most would agree that a Member of Parliament breaking the Criminal Law is in the public interest and that the media should be free to report on this (in a way that does not prejudice any future criminal proceedings)

A company dumping toxic waste in an unsafe and illegal way – again, a clear example of something that would be in the public interest and that should not be able to be kept private by way of a court order preventing publication of details in the media.

To follow those three examples of things that, in my opinion, would be within the public interest some examples of what I believe the public might be interested in, but are not really in the public interest:

Celebrity A and Celebrity B (both single) have been seen in a restaurant having a romantic meal – the public might very well be interested in this, but the media should be able to be prevented from printing the details if Celebrity A, Celebrity B or both want to keep it private.

Celebrity A and Celebrity B (inclusive of politicians) are having an affair –again, the public might very well be interested in the lives of celebrities, but is it really in the public interest to have family disputes publicised in the paper? The effect of affairs can be bad enough, especially for any children involved, without having to see the details of it plastered in every newspaper, on every TV news bulletin and all over the radio for the next six weeks? I don’t think so.

Not every case is that straight forward, but I think it gives a flavour of the types of situations I am thinking of when looking at whether or not something is in the public interest or not. As I have already said above it’s not my place to try and put a definition on “public interest” – that must fall to Parliament and the Courts to define and interpret.

The Prime Minister has repeatedly said that he does not like the idea of judges making the law and doing Parliament’s job for them. I would agree that I do not like such a situation, but that is not what we have here (although I do feel it necessary that the Courts can provide an equitable remedy where none exists in law – where the Courts do this though it then falls to Parliament to deal with the gap that has arisen in the law by passing legislation). We have judges interpreting the Human Rights Act, a piece of primary legislation passed by the United Kingdom Parliament. It is the job of the Courts to interpret legislation passed by Parliament.

Privacy is an important aspect of human life. None of us wants our every move or the problems within our family plastered across the news. Some might argue that by being in the public eye celebrities should expect such things, or that celebrities are quite happy to use the media when it suits them. I do not subscribe to this view. Each us has a right to decide what we disclose and what we do not disclose to those around us. Not one of us is without a secret or two. There should be as little interference with that right as possible and freedom of expression is not an excuse for publishing private details about a person’s personal life that someone has sold to you or that you have discovered by investigating a person. Only where it is in the public interest should a person’s privacy be placed after freedom of expression. The media do not have a right to publish what they want about who they want regardless of the wider consequences. When they decide to print photographs of a person having an affair there are many innocent people who are affected – the innocent partner(s) who have been faithful, any children that may exist (and that may well include nieces and nephews).

Exactly what is in the public interest to reveal about a celebrity or not is a difficult question. By the nature of their position in public they are inevitably going to be role models for younger people in society. So, if I were to be caught speeding by the police in my car it would most probably not be in the public interest for the press to report that. However, if a premier league footballer is caught speeding then that very well may be in the public interest to report.

However, I can think of only a few situations where it might be in the public interest to report the affair of a high profile public figure. An example might be where such an affair could compromise the political process (e.g. a Government Minister having an affair with someone who has or is seeking a Government contract – especially where that Government Minister is or may be responsible for awarding said contract).

Generally, I am not in favour of restricting the press. However, free expression is not an absolute right (and cannot ever be) and is subject to exceptions. The privacy of a person, whether they are in the public eye or not, where there is no real public benefit to knowing should be respected and in my view there should be a presumption in favour of protecting that persons privacy if they so wish.

I do have concerns about so called “super-injunctions” as in my view no court order should prevent a person from discussing a matter with their elected representatives. Such injunctions are, thankfully, very rare. I will go on to explore what super-injunctions and privacy in more detail in blog posts over the coming days.

Corroboration and rape

I have just watched the Newsnight Scotland piece relating to concerns raised by the Lord Advocate, Elish Angiolini QC, that the current requirement for corroboration in Scots Law in relation to sexual offence cases could be a potential point of challenge under the Human Rights Act. During the course of the piece several matters were raised that cause me great concern. Before I begin on those I wish to explain corroboration for anyone who may not be familiar with it.

In Scotland, the prosecution must prove its case beyond reasonable doubt before a court can convict the accused. That in itself is not a difficult issue and is present in the other UK jurisdictions. In Scots Law, in order for the crown to succeed it must lead sufficient corroborated evidence as to the guilt of the accused in beyond reasonable doubt. Corroboration does not require the crown to produce at least two witnesses; rather it requires the crown to produce evidence from at least two independent sources in order to prove each essential factual element of its case (i.e. the factual elements that relate to the charge(s) against the accused). The sources are wide and many and include oral evidence from a person as to what they witnessed or heard, forensic evidence (fingerprints, blood etc.), CCTV and the list continues.

A simple admission from the accused is not enough to convict them in a Scottish Court. The admission of the accused would be one source of evidence, but it must also be corroborated by another source of evidence. It is entirely irrelevant how many times the accused makes their confession or how many different people that confession is made to as the evidence still originates from one source (the accused). There is, however, an exception to this and that is where the accused’s confession contains details that only the perpetrator of the offence would know. The police tend to be a lot less forthcoming with information about a crime in Scotland than their colleagues south of the border as the more information that exists in the public domain the harder it becomes to corroborate a confession. Even the worst defence agent in the country would be able to destroy a prosecution that relied solely on a confession containing only details available to the public!

The requirement of corroboration provides an important safeguard in Scottish criminal prosecutions. It significantly reduces the chances of an innocent person being wrongly convicted.

Now I do not propose to spend huge amounts of time considering the wider issue of corroboration that will probably come in a future post. I will say however that in my view the requirement of corroboration in Scots Law is something that must be kept if we are going to retain a criminal justice system where we can have confidence that those convicted are guilty (of course mistakes do still happen, no system is perfect).

This post is looking at a complex and emotive subject: Rape. The whole thrust of the Newsnight item was to do with the low conviction rate in cases of rape and in particular the barrier that the requirement of corroboration puts up in relation to those cases.

The constant push to increase the number of rape convictions does not sit particularly well with me. I admire much of the work that Rape Crisis do, but I do find myself getting more than a little annoyed with them over their constant desire to see more people convicted of rape. I am sure we are all in agreement that rape is an utterly abhorrent offence and those who commit such an offence should be punished for it. However, I am concerned that many campaigners (and even those in a position of power) are advancing the idea that more convictions are obtained for rape at any cost: even the reputation and life of an innocent person accused of rape.

I have previously argued on this blog that those accused of rape should be kept anonymous until such times as they are convicted. I have formed such an opinion based on the damage that is done to a person’s life who is wrongly accused of rape. Partly, I suggest, this is down to the mantra that is pushed by the likes of Rape Crisis that too many rapists are getting off. Even once acquitted there is a certain stigma that remains, a “no smoke without fire” idea clouds the judgement of people and those people’s opinions of the accused. It is for these reasons that I am cautious about how we go about increasing the number of rape convictions. The conviction of an innocent person for any crime is deplorable, but when the crime is of such a serious nature and the effect of such a conviction (even after acquittal on appeal) can completely ruin the life of the individual concerned we must be ever more careful.

Like most people in society I would like to see those guilty of rape be convicted and punished for their deed. The impact their crime has upon their victim is enormous and can significantly impede their life. The emotional and psychological problems that can come after being subjected to such an abhorrent and degrading act warrant the severe punishment that exists for rape within our legal system. However, I would not wish to see this at the expense of innocent people.

The idea that the protection of corroboration should be removed from rape cases is not something I would wish to see, it may well increase the number of convictions for rape; however, I would be concerned that the increase of convictions included a significant number of people who are innocent. The increase in the number of convictions may please the Lord Advocate, Rape Crisis and others but may have a significant detrimental impact on the overall confidence of the criminal justice system.

Rape (and indeed most other sexual offences) is notoriously difficult to prosecute as the evidence can be very ambiguous. Forensic evidence alone cannot prove rape and indeed the complainer’s and the accused’s version of events may equally explain and be supported by the forensic evidence. A significant amount of corroboration is needed in order to secure a conviction for rape. However, the central issue (as I see it) with the difficulty in obtaining a conviction for rape cannot be solved by getting rid of the need for corroboration, as it then simply comes down to who the jury believe more: the accused or the complainer. That is not, by any means, an objective test and Scots Law requires an objective test to be satisfied for a conviction. Corroboration may actually serve to help establish which version of the same facts presented in court is the truth. Issues around ambiguity can be resolved by leading evidence that corroborates what one side is saying over the other.

One final matter I wish to raise in this post is what Paul McBride QC had to say on the matter in the Newsnight Scotland studio. The number of convictions can be somewhat misleading. His examples included a person convicted of 20 rapes over a number of years would only be recorded as one conviction (despite there being 20 separate charges to the indictment) and that a person convicted of rape and murder would have their conviction recorded as a murder conviction (presumably because Murder is the more serious charge on the indictment). When debating the issue of the low numbers of rape convictions, and I believe we should as it is a matter of public interest, there must be an effort made to get accurate statistics as to just how many rape complaints result in a person being convicted rather than just the number of indictments (which can contain several similar charges or a huge number of different charges) which result in a conviction.

Do the new civil legal aid rules prevent access to justice?

Access to justice is an important aspect of the operation of the Law. There is little point in giving people rights under the law if they cannot seek to enforce those rights through the courts where necessary. The Law infiltrates every element of our lives, it governs even the most basic of tasks we do each and every day and we give little thought to it. A person who is prevented from accessing justice based simply on the cost of litigation is an enormous failure; it devalues the rights of that individual if they cannot seek to enforce them. It is upon this basis that we provide legal aid to litigants who cannot afford the costs of litigation (in theory) and this extends to both the criminal and civil arms of the legal system.

Legal Aid is of course public money and in times where public expenditure is tighter than at any other time in the last decade the legal aid budget has had to take a share of the cuts imposed by Government. This has an impact upon access to justice as the only real way to cut the legal aid bill is to make it harder for people to gain public assistance in relation to cases before the courts. Efficiency savings alone would not give the savings expected by the Government in relation to the legal aid bill.

I was reading Ian Nisbet’s article on Yell.com yesterday evening around changes to civil legal aid that will have an impact upon the ability of children, and indeed students, to seek to have their rights enforced before the courts. Reading it gave me great concerns around access to justice for a group of people who are particularly vulnerable.

Prior to the changes to the civil legal aid rules if a child was seeking to enforce their rights through the courts, only their own assets and income would be taken into consideration. The normal position for a child is that they have no real assets or income of any real value and would therefore probably have qualified for legal aid automatically. Now, however, with their parent’s income and assets being taken into consideration the child may not qualify for legal aid. There are a number of issues with this.

Does the alimentary provisions extend to funding legal action?

The central idea to these rule changes is the alimentary provisions within the Family Law (Scotland) Act 1985. These provide that a parent has a legal duty to financially support a child until they attain the age of 18, or until the age of 24 where they “reasonably and appropriately undergoing instruction at an educational establishment, or training for employment, or for a trade, profession or vocation”.

Is such a change to the legal aid rules really what was intended when these provisions were drafted? Certainly when one looks at them in context it certainly does not appear that it was what they intended. However, the provisions now extend to the funding of legal actions (there are some exceptions to the rules, which I will come on to look at later). Does this duty upon the parents translate into the right that co-exists automatically? I would venture to suggest, most humbly, that it would. It would be the only logical option.

The options open to the child are not realistic

Assuming the parent is refusing to fund the legal action after the Scottish Legal Aid Board has refused funding for legal aid, what options does the child have? Well, the child could seek to challenge the SLABs decision in a judicial review. It’s not really a realistic option as Judicial Review is an expensive process and, well, the whole issue is the child’s inability to fund a legitimate action before the courts. The other obvious option isn’t all that practical either as it would be to sue their parents for the funds required…again we’re faced with the question of exactly how the child in question is able to do this given the issue at hand is their inability to fund a legal action.

The result is that for the child who has been refused legal aid and who is facing a barrier in relation to their parents funding the action they are effectively prevented from accessing justice to uphold and enforce their rights.

Exception

There is an exception provided for in the regulations. Regulation 3(b) of the The Civil Legal Aid (Scotland) Amendment Regulations 2010, in ammending the 2002 regulations provides: “Paragraph (1) does not apply if its application in the particular circumstances would be unjust or inequitable.”

This exception is important as it means that SLAB can, if it decides that to do so would be unjust or inequitable, ignore the requirement to consider the parent’s assets and income in deciding whether to grant a child legal aid. This may not affect the initial decision, but maybe it will affect the outcome of an appeal against a decision made to SLAB. It might be that once it is clear that the parents are going to refuse to fund the action and all other avenues have been demonstrably explored and ruled out that SLAB might just decide to reverse its original decision and grant legal aid. If it does not though, the issues described above may well come into play again.

As someone who does not actually practice law, but rather is still at the elementary stages of studying it, there may be things that I have failed to consider that are material to the above. I’m not writing this as a definitive guide to the issues surrounding the new legal aid rules, but rather, it is an expression of the concerns that I have as a result of my knowledge on the matter. Access to justice is vital to ensure that the law has real meaning. If a person cannot enforce their rights under the law then why have them at all? It’s as if they don’t exist in the first place!

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