Public Interest Litigation Update:

31st May 2016


Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
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Human Rights Law
  • Accused hacker cannot be forced to reveal passwords, rules Magistrates’ Court
Laurie Love v National Crime Agency, 5th May 2016
The Magistrates’ Court of England and Wales has ruled that an alleged hacker, Mr Laurie Love, who faces extradition to the USA, will not have to give the passwords for his encrypted computers to UK law enforcement officers.
The National Crime Agency (NCA) seized encrypted computers from Mr Love’s home.  The NCA applied to the court for a ruling that he provide the passwords.  No charges were brought against the accused in the UK and he sued the NCA for return of the hardware.  He argued that the proper procedure was under the Regulation of Investigatory Powers Act (RIPA) and an application to court was an attempt to circumvent that legislation, which contains safeguards.  He alleged that avoiding the RIPA procedure would breach his right to enjoyment of property and to respect for private life.
The judge held that the correct procedure for obtaining the information was set out in RIPA and stated that, ‘The case management powers of the court are not to be used to circumvent specific legislation that has been passed in order to deal with the disclosure sought.’
Read The Guardian newspaper article here.
  • Ex-pats of 15 years or more cannot vote in the EU Referendum
Shindler v UK (Application No. 19840/09)
The applicants, who were UK nationals that lived in Italy and Belgium respectively and who had not resided in the UK for over 15 years, challenged a rule which prevents them from voting in the EU referendum.  The Supreme Court upheld the decisions of the High Court and Court of Appeal by confirming that the 15 year rule applies.
The rule prohibits expatriates who were last registered to vote in the UK more than 15 years ago, from voting in the forthcoming referendum on EU membership.  The applicants argued that the 15 year rule was an unjustified restriction of the rights of movement in the EU.  The referendum was of particular significance to them given that if the UK were to leave the EU, they would end up without rights of abode in the countries they inhabit.  However, even if the rule were to be a restriction on the rights of free movement, it could be objectively justified as a proportionate means of achieving a legitimate objective.
The judges stated that, ‘In our view, parliament could legitimately take the view that electors who satisfy the test of closeness of connection set by the 15 year rule form an appropriate group to vote on the question whether the UK should remain a member of the European Union or leave the European Union.’
Read article from The Guardian here.
  • No breach of Articles 10 and 11 to refuse permission to hold conference
R (on the application of Ben-Dor & ors) v University of Southampton [2016] EWHC 953 (Admin)
The High Court dismissed a judicial review in respect of Southampton University’s decision to withdraw its permission to hold a conference.  It also refused permission to challenge the University’s decision to require the organisers to meet security costs as a condition of allowing the conference to take place at a later date.
The conference concerned the legality of the existence of Israel and the University was concerned that there would be a high risk of disorder if it were to go ahead.  It was not possible to hold the conference until measures could be taken to secure order and the University advised organisers that it could take place at a later date subject to certain conditions, including that the organisers would have to meet the costs in providing security.  The organisers argued that both decisions were an unlawful interference with their right to free expression and right to free assembly.  They also argued that there was a breach of the University’s Code of Practice and the decision was based on irrelevant considerations, i.e. the recent terror attacks in Paris.
As the rights in question are not absolute, it was necessary for the court to consider the question of proportionality.  Whipple J found that the University had no real choice in withdrawing its permission given the safety concerns.  Further, she found that there was no reason why the conference should not fund its own security costs as this did not amount to any interference with the rights in question.
Read article from Inform here.
  • Judgment reserved in Ashers case
On 12th May 2016, the three appeal judges, Lord Chief Justice Sir Declan Morgan and Lord Justices Weatherup and Weir confirmed that they were reserving their judgment in the case of Lee v McArthur, better known as the Ashers case.
Ashers Baking Company run by the McArthurs sought to overturn a finding that it acted unlawfully in refusing to bake a cake for a customer depicting Sesame Street characters Bert and Ernie below the slogan ‘Support Gay Marriage.’  The cake was for an event to mark International Day Against Homophobia.  The bakery refunded the money for the order on the basis that the message was against their Christian faith. 
The customer sued and Belfast County Court held that the bakery had discriminated against him on grounds of sexual orientation and religious belief or political opinion.  They were ordered to pay £500 compensation.  Counsel for the cake company stated that, ‘the reason the order was declined was conscience, it was nothing to do with this customer or any customer’s political opinion.’
The appeal judges have pledged to give their verdict as soon as possible.
Read news article here.
  • Breach of Article 8 ECHR to require persons to disclose convictions
On 11th May 2016, the High Court held that the statutory framework which requires persons with more than one conviction to automatically disclose them to employers violates Article 8 of the ECHR and is not in accordance with the law.
The background to this case is that the applicant was convicted of a number of seat belt related offences. 
In July 2015, Mr Justice Treacy held that the statutory framework that provides for the automatic disclosure of criminal convictions to employers is unlawful.  This is because persons with more than one minor conviction, will have their convictions disclosed forever, while those with only one minor conviction will have it expunged from the records after 11 years.  He also found that the statutory framework violates Article 8 of the ECHR because it does not permit consideration of the relevance of the information to be disclosed or the proportionality of the disclosure.  The Department of Justice appealed the decision of the High Court.  On 8th March 2016 the Court of Appeal remitted the decision back to Mr Justice Treacy for further consideration of the legislation.
Mr Justice Treacy found that the Rehabilitation of Offenders (Exceptions) (NI) Order 1979 violates Article 8 of the ECHR since the interference with the applicant’s rights fails the test of ‘necessity.’  Part V of The Police Act 1997 was also considered to violate Article 8.
The Court of Appeal will now consider the respondent’s appeal.
Read case summary here.


European Court of Human Rights
  • Absence of fixed time limits in UK immigration system not a breach of Article 5
JN v United Kingdom (Application No. 27289/12)
The European Court of Human Rights ruled that the United Kingdom was not in breach of Article 5 of the Convention (right to liberty) by having in place a system which did not specify maximum time limits for detaining persons prior to deportation.
The applicant was an Iranian national who had been convicted of indecent assault and had served a twelve-month custodial sentence.  Following his release, he was subjected to a number of conditions which he did not comply with.  The Secretary of State issued an order to deport the applicant and detained him under the legislation.  He was detained for more than four and a half years and alleged that his detention was unlawful.
The Court stated the principles as follows ‘the detention must be for the purpose of exercising the power to deport, be reasonable, release the detainee if they cannot be deported within a reasonable period and the authorities must act with due diligence and expedition to effect the removal.’ 
However, the Court found that Article 5 does not lay down maximum time limits for detention pending deportation.  The issue was whether domestic law contained sufficient procedural safeguards against arbitrariness.  In this case the UK met the Convention requirements.  However, between January 2008 and September 2009 the matter had not been pursued with due diligence and detention during this period had been unlawful.
Read UK Human Rights Blog article here.


Family Law
  • Father should be allowed to apply for parental responsibility after surrogacy
In the matter of Z (A Child) (No 2) [2016] EWHC 1191 (Fam)
The Court of Protection granted an order for a declaration of incompatibility of a section of the Human Fertilisation and Embryology Act with the Convention. 
The facts were that a child was born in Minnesota in the USA as a result of surrogacy.  The applicant was the father and the mother was a donor while the surrogate was not related to the child.  The surrogacy complied with the relevant legal requirements.  The court in Minnesota relieved the surrogate mother of legal rights and responsibilities and established the applicant father as the sole parent of the baby.
When the applicant returned to the UK with the child, the UK continued to treat the surrogate as the mother while the applicant did not have parental responsibility.  In order to establish his parentage he would have to apply for a parental order.  However, under the legislation a parental order must be made by two people and it could not be interpreted otherwise.  The applicant sought a declaration that the provision was incompatible on grounds that it discriminated against a single person’s rights to private and family life, which was inconsistent with Articles 8 and 14 of the Convention.
The Secretary of State did not accept that there was any incompatibility with Article 8 construed by itself and that the relevant provisions were incompatible with Article 14, construed in conjunction with Article 8.  This was therefore a discrimination case.  The judge accepted that a declaration of incompatibility could be made but considered that this matter concerned a controversial social policy issue.  Therefore, it was for the legislature to determine its response.
Read the UK Human Rights blog article here.


Privacy Law
  • Supreme Court upholds injunction in celebrity threesome case
PJS v News Group Newspapers Ltd [2016] UKSC 26
The Supreme Court, by a majority of 4-1 ruled that the injunction protecting the privacy rights of a celebrity in the entertainment industry, and their family, would remain in place pending the main trial.  Publication would be an infringement of the privacy rights of the applicant and their family.  There was also a possibility that the publication could be permanently banned.
The background to the case was that a couple approached the editor of The Sun on Sunday in early January 2016 and informed him that they had a three-way sexual encounter with the applicant in 2011.  The editor proposed to publish the story and notified the applicant of his intention.  The applicant brought legal proceedings and sought an injunction which was granted.  However, News Group Newspapers Ltd brought a fresh application to set aside the injunction in 2016, on the grounds that the story was available on the internet and overseas.  While the Court of Appeal lifted the injunction it has remained in place pending the Supreme Court judgment.
The Court held that the injunction could only be lifted if the court was satisfied that the publication would not be permanently banned following trial.  It decided that the right of freedom of expression and the right to privacy are equal in principle and the Court of Appeal erred in granting freedom of expression greater weight.  The Court also had to consider the extent to which the story has or will be made publicly available, the level of public interest and privacy codes.
Read news article from The Guardian here.


Terrorism Law
  • No compensation for reversed conviction, because ground not new or newly discovered fact
In the matter of an Application by Gerard Magee [2016] NICA 19
The Court of Appeal ruled that the Department of Justice was entitled to refuse compensation to a man under Section 133(1) of the Criminal Justice Act 1988, because the reversal of his decision was not on the ground of a new or newly discovered fact, but on the passing of the Human Rights Act 1998.
The appellant was arrested in 1988 in connection with terrorist offences.  Despite having requested access to a solicitor, a 48 hour delay was authorised under the terrorism legislation.  He made admissions after a number of interviews.  He was tried without a jury and although he challenged the admission of his confessions, he was convicted in 1990.
The European Court of Human Rights, in 2000, found that there had been a violation of the appellant’s rights under Article 6 on the basis that he had been denied access to a solicitor.  His conviction was then quashed by the Court of Appeal.  However, when he sought compensation, the DoJ refused, finding that the wording of the provision required convictions to be reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice.
Following the Supreme Court decision, re. McCartney and McDermott [2011] which held that new or newly discovered facts could include facts known during trial or appeal, the appellant judicially reviewed the DoJ’s decision.  While they had a discretion to reconsider their decision, and did so reconsider, they still refused compensation.  The decision was appealed and the Court of Appeal upheld the DoJ’s decision in refusing compensation.
Read news article here.


Historical Investigations
  • Court of Appeal dismisses challenge to Historical Abuse Inquiry
In last month’s Update, it was reported that the High Court had dismissed an application for judicial review of the decisions of the Secretary of State to fail to bring Kincora’s Boy’s Home within the remit of a separate Westminster Independent Inquiry into child sexual abuse. 
The decision was appealed and on 27th May 2016 the Court of Appeal dismissed the appeal.  The appellant argued that there was an obligation on the HIA Inquiry to conduct the matter in an Article 3 compliant manner.  However, the Court held that there is no requirement on the Secretary of State to utilise the HIA Inquiry as the vehicle to satisfy any Article 3 procedural obligation and does not require the HIA Inquiry to take on that role.
The Lord Chief Justice stated that, ‘We have decided that the HIA Inquiry is entitled to proceed along the route mapped out by it.  That does not in any way detract from the need to ensure that our obligations to these children are satisfied.’
Read the case summary here.


Pro Bono

The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to join the register and find out more about opportunities to do pro bono work, please email to request an application form.


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