Public Interest Litigation Update:

24th September 2013


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Criminal Law
  • Crown Prosecution Service introduces guidelines for prosecutions involving offences committed through social media
As has been highlighted in previous editions of the Update, there have been a number of high profile investigations and prosecutions regarding offences committed through social media such as Facebook and Twitter.
As a result of these cases, the Director of Public Prosecutions has published guidelines to clarify the circumstances as to when a criminal prosecution might take place.
Following the publication of these guidelines, the Director stated ‘I believe the guidelines do set out the right approach to prosecution by making the distinction between those communications that should be robustly prosecuted, such as those that amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders, and those communications which may be considered grossly offensive, to which the high threshold must apply.’
The publication of the guidelines could be seen to be timely. A freelance journalist called Caroline Criado-Perez campaigned to have the author Jane Austen as the new face of The Bank of England £10 note. Although her campaign was ultimately successful, it led to her receiving many offensive messages through Twitter. Even as the police investigation was on-going, she continued to receive threats and was forced to close her Twitter account.
  •  Jurors jailed for contempt of court
Two jurors have been jailed for two months after being found guilty of contempt of court for misusing the internet during crown court trials. Kasim Davey posted a message on Facebook about a sex offences prosecution at Wood Green Crown Court. Joseph Beard, 29, of Esher, Surrey, used Google to carry out research on a fraud case at Kingston Crown Court, at which he was a juror. Through this research, he obtained extra information about victims, which he was said to have shared with fellow jurors.
The cases themselves were brought before the Courts by the Attorney General, Dominic Grieve. He argued that the actions of the jurors interfered with the administration of justice. The Judges who dealt with both these cases hoped that the sentences would send out the message that such cases would normally be dealt with by prison sentences.

  • UK authorities arrest partner of Guardian journalist and seize electronic equipment at Heathrow airport
In a case that has attracted significant media attention, David Miranda, partner of the Guardian journalist Glenn Greenwald, was detained for 9 hours upon his arrival at Heathrow Airport.
Mr Greenwald was the journalist who exposed the electronic surveillance programmes of the National Security Agency (NSA) in the United States and of General Communications Headquarters (GCHQ) in the UK. Mr Miranda was travelling from Germany to his home in Rio de Janeiro. He was meeting a journalist in Germany and seemed to have been carrying information between this person and Mr Greenwald regarding the surveillance story. He had stopped in Heathrow in order to catch a connecting flight.
Upon his arrival at the airport terminal, he was detained under Schedule 7 of the Terrorism Act 2000. Under this legislation, a person can be detained in an airport, port or other border area, to ascertain if they are a terrorist or involved in terrorist activity. Mr Miranda was held for 9 hours, the maximum amount of time possible under the legislation. Electronic equipment was also seized and examined by Police.
Mr Miranda has commenced legal proceedings, challenging his detention under Schedule 7 of the Terrorism Act and seeking the return of equipment seized without the contents being examined or disclosed by the authorities. The Court has made an order to prevent the police from inspecting, copying, transferring, disclosing or interfering with the data it has seized.  This order is subject to the provisos that the material could be used for the purposes of protecting national security and for investigating whether Mr Miranda is or has been concerned in the commission, preparation or instigation of acts of terrorism. It would appear it will take some time before all matters are addressed in respect of this case.
For further reading on this issue, please see here and here.

  • Appeal against conviction for an offence under Schedule 7 dismissed
Sylvie Beghal v Director of Public Prosecutions [2013] EWHC 2573 (Admin)
In a case that might have implications regarding the detention of Mr Miranda, this appeal against conviction for the offence of failing to answer questions under Schedule 7 has been dismissed. 
The Appellant is a French national who normally resides in the UK. Her husband is on remand in custody in France on allegations of committing terrorist offences.  She had visited her husband in France. It was upon her return to the UK that she was detained by Police under Schedule 7.
In the course of interview, she refused to answer the majority of questions put to her. At the end of the interview, she was cautioned for the offence of failing to answer questions. She was prosecuted through the Magistrates Court. She pleaded guilty to the offence and received a conditional discharge. She then appealed the conviction and the sentence.
In the course of the appeal, it was argued that the detention, prosecution and conviction breached her rights under Articles 5, 6 and 8 of the European Convention. The Court held that Schedule 7 struck a fair balance between the rights of the individual and the rights of the community. It was also held that Schedule 7 did not engage the Article 6 rights of the appellant.
However, the Court observed that ‘there was room for improvement’ with respect to the provisions of Schedule 7. The Court’s main concern was over the fact that currently, convictions for offences under Schedule 7 can be raised in any future criminal proceedings.
For more information regarding this case, please click here.

Rights of Offenders
  • ECtHR finds ban on Russian prisoners voting disproportionate
In July 2013, the European Court of Human Rights held the automatic and indiscriminate ban on Russian prisoners being able to vote was disproportionate.
The Court was considering the cases of Anchugov and Gladkov v Russia. The deprivation of the right to vote upon imprisonment is contained in the Russian Constitution. The government argued that the measures were in pursuit of a legitimate aim, namely the encouragement of civic responsibility and respect of the rule of law.
However, the Court found that the applicants had been deprived of their rights to vote regardless of the length of sentence imposed, the gravity of offences and the personal circumstances of prisoners. In these circumstances the Court could not accept that the measures in question were proportionate.
The government also argued that this case was different from 2 cases recently decided by the Court on almost exactly the same issues: Hirst v UK and Scoppola v Italy. This was because Russia’s prohibition was contained in its Constitution, whereas the other cases set out the prohibition in parliamentary legislation. The Court rejected this argument, stating that all acts of a State can be subject to examination, irrespective of the kind of measure involved.
  •  ECtHR holds whole-life prison sentences without review breaches Human Rights
Three UK Prisoners who have been sentenced to spend the rest of their lives in prison took legal proceedings against the government. They contended that imprisonment without the facility for review was in breach of Article 3 of the Convention, as it amounted to inhuman and degrading treatment.
The Court held that in order for sentences of whole-life imprisonment to be compatible with the Convention there has to be a possibility of review and a possibility of release. It had been noted that until 2003, the Executive, under judicial scrutiny, was able to review a whole-life sentence after a period of 25 years. However, these provisions were abolished by the Criminal Justice Act 2003. After this period, a prisoner subject to a whole-life sentence could only be released at the discretion of the Justice Secretary, on compassionate grounds.
In all the circumstances, the Court held that the current framework was in breach of Article 3 of the Convention. However, the Court stressed that the decision did not in any way indicate that the three prisoners who were part of proceedings were going to be released at any time in the near future.
The first legal challenge to whole-life sentences following this decision has been initiated.
  •  Courts refuse application by Barry George for compensation
Barry George, who was wrongfully convicted of murdering Jill Dando has been unsuccessful in his application for compensation. Mr George was convicted of murder in 2001, but was acquitted following a retrial in 2008, when the reliability of forensic evidence was brought into question.
The High Court in England and Wales refused his application for compensation. It stated that there was a possibility that a jury could still have convicted him, despite the new evidence that led to his acquittal. The Court of Appeal refused to give him permission to appeal the original decision of the High Court.

Social Security
  • Challenge to the introduction of the ‘Bedroom Tax’ fails
MA and others (on the application of) v Secretary of State for Work and Pensions and Others [2013] EWHC 2213
A case that sought to challenge the legality of new legislation that changed the rules around claiming Housing Benefit has been unsuccessful. The new rules allow for one bedroom per person or per couple in a household. The rule changes have the effect of reducing the amount of Housing Benefit that can be claimed by a large number of people. It has been argued that the new rules discriminate against disabled people and those who have foster caring responsibilities.
In this case the applicants based their challenge on three grounds:

  1. The new measures are unlawfully discriminatory because they fail to provide for the needs of disabled people in a way that violates their rights under Article 14 of the Convention.
  2.  The new measures involve a violation by the Secretary of State of the Public Sector Equality Duty under the Equality Act 2010.
  3. The Secretary of State unlawfully deployed guidance to prescribe the means of calculating the appropriate maximum Housing Benefit for certain classes of case. That can only be done by secondary legislation; and in any event the guidance cannot cure the discriminatory effects of the regulations.
In a previous case, Burnip v Birmingham City Council, the Court of Appeal held that where the discrimination lay in the failure to make an exception from a policy or criterion of general application in favour of disabled people, the policy maker did not have to adduce weighty reasons to justify the discrimination, especially where questions of social policy are in issue. It also held the claimants had to show that the measure complained of was “manifestly without reasonable foundation”.
The Court held that the case before it highlighted instances of indirect discrimination. Justification for this kind of discrimination had to meet a lower threshold. The Court also noted that in contrast to Burnip there was no distinct category of disabled person highlighted in the present case.
The Court also considered the reasons behind the legislative changes. It concluded that the changes were a key part of government policy. It was held this is not an area in which the judiciary should intervene.
In all the circumstances, the Court dismissed the legal challenge. More on these particular cases can be read here, here and here.

  • Litigation on Government employment schemes continues
In England and Wales, the Court of Appeal held that almost all of the Government’s employment schemes were illegal. The reason for this decision was that the Department for Work and Pensions (DWP) had failed to provide adequate information to those who were mandatorily forced to participate in those schemes. In particular, there was insufficient information about the sanctions they faced and the right of the person to appeal a decision, directing them to work on an unpaid basis, sometimes for up to several hundred hours. This case related to Cait Reilly, a graduate who was forced to work in Poundland as a condition of receiving benefits.
Within a matter of days of the judgment being handed down, the Minister for Work and Pensions introduced legislation that was to have the effect of overturning the decision of the Court of Appeal. The Bill is also to have retrospective effect, to prevent the Government having to pay back the benefits withheld from people by way of sanction.
Despite these actions the DWP sought and was granted leave to appeal to the Supreme Court. The hearing itself has taken place but it is understood that judgment has not yet been handed down.
Further litigation has been initiated against the urgent legislation passed by Parliament on the issue. In particular, focus has been placed upon the retrospective nature of the law, and that the legislation contravenes article 6 rights. The legal action was taken by the same lawyers who represented Cait Reilly in the original case. The letter before action was served on the DWP in June 2013.

Employment Law
  • Employee Takes Legal Action Over ‘Zero Hour’ Contracts
‘Zero Hour’ contracts are contracts of employment where no number of hours or times of work are specified. The employee is essentially ‘on call’ to work when required by the employer. The employee is only paid for those periods that they are at work.
These arrangements caused significant controversy when they were reported on initially in July 2013, and have continued to attract media attention.
Zahera Gabriel - Wilbraham, a former Sports Direct employee, has launched a legal challenge to the use of ‘zero hour contracts’. Sports Direct are reported to employ 20,000 of its 23,000 staff on such contracts. The applicant is being represented by Leigh-Day Solicitors and receives financial assistance from a campaign group called 38 Degrees. The legal action was initiated at the beginning of August 2013.
The legal proceedings coincide with an internal review being carried out by the Department of Business Innovation and Skills under its Minister, Vince Cable into ‘zero hour’ contracts.

Medical Law
  • The Appeals Regarding Tony Nicklinson and Paul Lamb are Dismissed by the Court of Appeal
Both these cases seek clarification on when others might be legally able to assist the applicants in ending their own lives.
As covered in previous editions of the Update, Tony Nicklinson suffered from ‘locked-in syndrome’ following a catastrophic stroke. He was almost completely paralysed. He had expressed the wish that he wanted to end his life. However he would be incapable of carrying out such an action without medical assistance. He had initiated legal proceedings that would overturn the prohibition on medical professionals from ending the lives of their patients. Shortly after his legal challenge was dismissed by the High Court, Tony passed away from pneumonia.
The appeal itself was taken forward by Mr Lamb. He was severely paralysed following a traffic accident. He stated that he experiences pain on a daily basis. The appeal was supported by Jane Nicklinson, the widow of Tony.
The Court of Appeal dismissed the appeal. The Court upheld the original decision, which stated that Parliament and not the judiciary has the power to decide to change the laws on assisted suicide. In the judgment, the Lord Chief Justice Lord Judge said Parliament represented "the conscience of the nation" when it came to addressing life and death issues, such as abortions and the death penalty.
"Judges, however eminent, do not: our responsibility is to discover the relevant legal principles, and apply the law as we find it."
Both Mr Lamb and the Nicklinson family have indicated a willingness to appeal this decision to the UK Supreme Court.
  • Appeal against the legality of prosecutorial guidelines in cases of assisted suicide allowed
The applicant, who can only be identified as ‘Martin’ also suffers from ‘locked in syndrome’. His case was originally considered alongside that of Mr Nicklinson. His case was also dismissed by the High Court.
His appeal to the Court of Appeal addressed the issue of the prosecutorial guidelines issued by the Department of Public Prosecutions, following the case of Debbie Purdy. Martin argued that the guidelines were unclear in cases where medical professionals who accompanied someone to a clinic in Switzerland would do so at the risk of being prosecuted.
In the course of delivering the judgment, the Court held "In our judgment, the [DPP's] policy is in certain respects not sufficiently clear … in relation to healthcare professionals. It is not surprising that they are reluctant to assist victims to commit suicide.”
The Court also stated "It is not impossible or impractical to amend the policy so as to make its application in relation to cases [involving those who are not members of a patient's immediate family] more foreseeable than it currently is."
However, there are strong indications that the Director of Public Prosecutions will appeal this decision to the UK Supreme Court.
  • English High Court allows non-therapeutic sterilisation of a learning disabled person
NHS Trust v DE [2013] EWHC 2562
This was a difficult case that related to a 37 year old man, DE, who has a severe learning disability. Thanks to the significant and long term care and support he receives from his family, he can exercise a modest level of autonomy over certain parts of his life. He is in a long standing and loving relationship with a woman, identified as ‘PQ’ who also suffers from a learning disability.
PQ became pregnant and the couple had a child together. This put considerable strain on the relationship and the family support network in place. DE was also subject to extensive supervision, which threatened the autonomy that had taken a long time to obtain. Therefore, he expressed the wish that he did not want to have any more children. However owing to DE’s learning disability, he does not have the capacity to make decisions on the use of contraception. DE’s family felt the best way to respect his wishes was for him to have a vasectomy.
The Court held that DE had the capacity to enter into sexual relations, but did not have the capacity to consent to contraception. The Court decided that another pregnancy would have such an adverse impact upon DE that a vasectomy was in his best interests.
The Judge noted that these types of cases relating to capacity were always fact sensitive and that this particular decision did not establish any precedent. For further discussion on the case, please click here.

  • NI High Court decides blood products can be used in a medical procedure involving a child who is a Jehova’s Witness
This case involved a 26 year old, only referred to as S. He suffers from a severe learning disability. His mother is a practising Jehova’s Witness. S attends the same church as his mother. As he cannot consent to decisions in relation to his own healthcare, his mother is listed as his guardian. He required an operation under an anaesthetic in order to extract a number of teeth. It would seem that at the time of the Court hearing, S was experiencing pain as a result of the medical problems with his teeth.
However, the medical team that was to carry out the operation stated that blood products would have to be placed on standby, in case S’s life became endangered in the course of the operation. Although it was understood that there was only a small risk of such products being required, his mother objected to the use of blood products on religious grounds.
Although all parties agreed that the operation was in S’s best interests, the medical professionals were unwilling to proceed with the operation without having the blood products available if they were needed.
The Court made a declaration that blood products could only be used in the very limited circumstances where the life of S was in danger.

LGBT Rights
  • Ireland introduces legislation to recognise rights of transgender people
An Irish Senator has published draft legislation to recognise the rights of transgender people, in compliance with the 2007 Irish High Court decision in the case of Dr Lydia Foy.  
The Bill has been published by Senator Katharine Zappone and is co- sponsored by Senators Jillian Van Turnhout and Fiach MacConghail. There have been indications that the coalition government will try to bring the law into force within a year.

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Immigration Law
  • The UK  Government Deports Abu Qatada After Lengthy Legal Proceedings
In a case that has lasted 8 years and has reportedly cost over £1.7 million in public funds, Home Secretary Theresa May has secured the removal of Abu Qatada from the UK. Qatada has been returned to Jordan, where he is to face trial on terrorism offences allegedly committed in that jurisdiction.
He was initially subject to detention without charge, until this system was declared illegal by the Courts in 2004. He was then subject to extremely rigorous bail conditions, which included a 17 hour curfew. He was remanded in custody once more, after it was held that he had breached his bail conditions.
Qatada had resisted attempts to deport him by claiming that he would not have a fair trial, as evidence obtained by torture would be used against him in the course of proceedings. However, his return to Jordan has also been hampered by the Home Secretary missing a key deadline that could have sped up his return to Jordan in April 2012.
The case of Qatada has been extremely lengthy and one that has attracted significant controversy. The UK Government had to obtain assurances from the Jordanian government that evidence obtained through torture would not be used. Following the signature of the mutual assistance treaty by both governments, Qatada agreed to leave the UK voluntarily.
  • Darfur family wins legal challenge against UKBA’s decision to deport
ALJ and A, B and C's Application for Judicial Review [2013] NIQB 88
A journalist who fled Sudan with her three children amid fears they would be killed due to her race and political views has won a legal challenge against their removal from Northern Ireland. The woman, a non-Arab Darfuri, was seeking to avoid being ordered to return to the Irish Republic. The family had first claimed refugee status in Dublin. However the application for asylum was refused in Ireland and they were told that their entitlement to remain there had expired. They then moved to Northern Ireland and made an application for asylum in the UK.
It is of note that the UK Border Agency's own guidance states that non-Arab Darfuris should not be returned to Sudan. Therefore, if an initial asylum application had been made in the UK and if it had been found that ALJ and her children were non-Arab Darfuris then because of the real risks to non-Arab Darfuris they would not have been returned to the Sudan.
The UK Border Agency sought to return them to Ireland under the Dublin II Regulations. According to the Dublin II Regulations, applications for asylum should be processed in the first safe European country reached by asylum seekers. The family challenged the Border Agency's decision. They argued that the Agency should exercise their discretion not to return the family to ROI, due to the Republic's low recognition rates.
A High Court judge in Belfast has ruled that returning the family to the Republic of Ireland would not be in the best interests of the children involved. The judge quashed the removal decision and the decision not to assume responsibility for determining the asylum application in the UK on the basis of a failure to consider the need to safeguard and promote the welfare of the children.
Local Developments
  • A number of reports cast the future of the Historical Enquiries Team in doubt
There have been a number of developments affecting the Historical Enquiries Team (HET) and an important recent report could call into question its continuing existence.
The HET has been subject to a number of critical reports over the course of its existence.
Most recently, a report from Her Majesty's Inspectorate of Constabularies (HMIC) has raised a number of concerns regarding the investigations carried out by the HET. The issues raised by the report include:
-       A lack of independence, particularly when investigating those cases involving intelligence information;
-       Concerns over the investigations into deaths involving Police and security forces;
-       Uncertainty over whether the investigations carried out comply with the ECHR.
Over the course of the summer, the Policing Board stated it had no confidence in the HET. The Policing Board thought all HET investigations into murders involving soldiers ought to be suspended. It remains to be seen what changes will be implemented following the HMIC report and the announcement by the Policing Board.
As a result of these developments, legal proceedings have been initiated by families of people killed by soldiers during the conflict.
  • UK failure to investigate IRA deaths breached human rights, says ECHR
McCaughey and Others v U.K. Case Number 43098/09
Hemsworth and Others v U.K. Case Number 58559/09
The European Court of Human Rights has ruled that the continuing failure to investigate the killing of Desmond McCaughey and Desmond Grew, and the unrelated death of John Hemsworth amounted to a breach of human rights.
McCaughey and Grew were killed following a security forces operation in 1990. Mr Hemsworth was in Belfast in 1997 when he was allegedly subject to violence by members of the Police. He died from his injuries shortly afterwards.
The Court was highly critical of the government’s failure to investigate fully and properly these deaths, as well as others that took place during the conflict.
In the course of the judgment in the cases of McCaughey and Grew, the Court noted: "These delays cannot be regarded as compatible with the state's obligation under article 2 [right to life] to ensure the effectiveness of investigations into suspicious deaths."
In the case of Hemsworth, the Court stated that the investigation into his death was also a breach of Article 2 owing to the excessive delays that investigation had been subject to.
To read more on these cases, please click here.
  • The family of Jean McConville to sue Police and Ministry Of Defence due to an ineffective investigation
Jean McConville, one of ‘the disappeared’, was taken from her home in West Belfast in 1971. She was murdered by the IRA and her body was buried at a location that remained undiscovered until 2003.
Her family are taking a civil action against the authorities, claiming they did not investigate her abduction and murder promptly and fully. The family contend that the authorities were told about her abduction within hours of it taking place.
The legal proceedings are in the very early stages.
  • Chief Constable and Secretary of State withdraw appeal against decision declaring stop and search powers unlawful
The Chief Constable and the Secretary of State had been challenging a decision of the Northern Ireland Court of Appeal. The challenge related to the use of stop and search powers against two Republicans, Marvin Canning and Bernard Fox. Mr Canning contended he had been stopped by Police more than 100 times.
Mr Canning argued that the powers were incompatible with his right to privacy under the European Convention of Human Rights. Earlier this year, the Court of Appeal held there was a lack of adequate safeguards against potential abuse of the system used under the Justice and Security (Northern Ireland) Act 2007.
Although the government had initially indicated that they were going to appeal the decision to the Supreme Court, their lawyers have confirmed the appeal is no longer being pursued
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International Development
  • Dutch Government ordered to pay compensation over massacre at Sebrenica
The Dutch Supreme Court has ordered the Dutch Government to pay compensation to the families of the victims who were killed at the fall of Sebrenica during the Balkans Conflict.
In the Sebrenica area in 1995, Dutch soldiers were involved in UN peacekeeping efforts. As Bosnian Serb troops advanced, thousands of Bosnian Muslims sought safety in the UN compound in the area. As Bosnian Serb troops surrounded the area, the peacekeepers expelled the civilians who were in the compound, and a massacre of 8,000 people followed. It was the worst atrocity on European soil since the Second World War.
The Dutch Supreme Court held that as UN Generals had lost control of the troops ostensibly under their command, ‘effective control’ reverted to the Dutch authorities in The Hague.
Although the case itself was taken on behalf of three individuals who lost their lives in the massacre, it is anticipated that the decision will enable all those who lost loved ones to access compensation.

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