PLAIR Cases Flashcards

Question

Peggie v Clark (1868)

Answer 1

CRIMINAL JUSTICE (SCOTLAND) ACT 2016 Arrest w/out a warrant? • Circumstances must be exceptional • There must be reasonable grounds to suspect an offence has been committed • Prompt arrest must be justified by the seriousness of the crime

Answer 2

CRIMINAL JUSTICE (SCOTLAND) ACT 2016 • Held by ECHR: an obligation to testify imposed by the law under the threat of a sanction violates convention o Can’t be forced to testify to incriminate oneself • The right not to incriminate oneself lies at the heart of a fair procedure and applies to all types of criminal proceedings. it is primarily concerned with respecting the will of an accused person to remain silent • The right to incriminate oneself… does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the subject such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing

Answer 3

ECHR ART 2 • In 2005, man suffered severe stroke which left him paralyzed from the neck down o Wanted to end his life but couldn’t commit suicide without assistance o Applied to the High Court for a declaration that either: • It would be legal for a doctor to assist in his suicide; or • The present legal regime concerning assisted suicide is incompatible with Article 8 of the European Convention on Human Rights (Right to respect for private and family life) • Held by ECHR: the question of assisted suicide falls within a state's margin of appreciation

Answer 4

ECHR ART 2 • Woman dying of motor neuron disease, end stage would be distressing and undignified o Wanted to determine when and how she would die • But wasn’t in a position to commit suicide • Wanted husband to help her • But: assisting in a suicide is a crime in the UK • Asked for assurance from Director of Public Prosecutors that he wouldn’t be charged… o Request refused • (ECHR Strasbourg) Court held: no violation of art. 2 o Right to life in article 2 could not be interpreted as conferring right to die • State obliged to protect life, not the opposite • So: no right to die, whether at hands of third person or by a public body • Thus no right to assisted suicide either

Answer 5

ECHR ART 2 • UK authorities received intel that IRA terrorists planning attack • 3 suspects, planning to detonate a car bomb o One was a known explosives expert, the other two had been convicted of offences relating to explosives and terrorism • Suspects seen crossing border, seen examining a parked car o Soldiers inspected car, saw something that they suspected was a remote-controlled car bomb • No attempt taken at that time to diffuse • Decided that suspects should be arrested, officers instructed to use lethal force if necessary because of the device attached to the car o In trying to arrest, suspects make moves as though reaching for something, soldiers think they’re reaching for remote or weapons and shoot them • But, suspects didn’t have any weapons or detonating devices, and there was no bomb in that particular car, though there was a bomb found in Spain in a car registered to suspect • Families of victims brought case against the UK for violation of article 2 paragraph 2 • Was this a proportionate response to the perceived threat? Was it absolutely necessary under the terms of Article 2 ECHR? • Court said: o “Absolutely necessary” is a stricter test than elsewhere in the convention (i.e. where their actions necessary for the protection of a democratic society?) -> actions of state subject to much stricter test than elsewhere o # of factors considered by court • Suspects were known by IRA, previously convicted for terrorism related offences, also had duty to protect people of Gibralter, as well as to soldiers o Found that: • Soldiers who shot suspects did not violate article two • Use of force was justified as it was based on an honest belief which is perceived for good reason to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the state and its law enforcement personnel. There was no violation of Article 2 ECHR in this regard. • They genuinely believed it was necessary to shoot to protect the life of innocents o So use of force by agents of state can be justified when based on an honest belief that there were good reasons, which were valid at the time • Found that the operation as a whole DID violate article 2 • Not enough was done to minimize, to the greatest extent possible, the recourse to the use of lethal force. This violated the UK’s obligations under Article 2

Answer 6

ECHR ART 2 • High school teacher developed “disturbing attachment” to a 14 year old student, Ahmed Osman • Followed him home, took pictures of him, gave him money • Policemen visited school, but nothing happened • Teacher legally changed name so that it was very similar to that of Ahmed o Headmaster alerts police • Teacher examined on 3 separate occasions by psychiatrist o Psychiatrist found that he was not technically mentally ill but he should be removed from the school immedietly • Suspended, pending investigation • After this, there were a number of attacks on Osman home, all reported to police • Teacher investigated further befcause he drove his car into another student, because he was jealous of that student’s relationship with Ahmed • Teacher asks to be interviewed by educational authority o Hints at potentially carrying out a shooting • Police go to home to arrest, but he’s gone • Few months later, shoots and kills Ahmed’s father, wounds Ahmed, • UK held to have infringed on right to life of Osman’s • Article 2 implies duty to take positive action in certain cases to protect individuals o Scope: • Obligation to protect life has to be interpreted in such a way that it doesn’t impose unreasonable duty on authorities o Test: • “The authorities knew or ought to have known at the time of the existence of a real and immediate risk of life of an identified individual or individuals […] and they failed to take measures within the scope of their powers which judged reasonably, might have been expected to avoid that risk”.

Answer 7

ECHR ART 2 • Mr. Van Colle employes Mr. B at opticians practice o After a few weeks, they got into a physical argument, Mr. B never comes back to work o Later, B is arrested for stealing from another optician • A lot of items found in his garage, including items he had stolen from Mr. Van Colle o Mr. VC’s car set on fire under seemingly suspicious circumstances • Police say not suspicious, insurance says suspicious • Mr. VC doesn’t tell police what insurance says o Mr VC gets threatening call from Mr B, urging him to drop charges • VC calls and leaves message for police o Before police can get to him, VC shot and killed by Mr. B • Osmond test applied o court should endeavour to place itself in the position of the police officer and “assess events as they unfolded through his eyes” per Lord Bingham at [32]

Answer 8

ECHR ART 2 • British national diagnosed with Leukemia in 1970s o in 1950s, her father was present during nuclear tests on Christmas Island • Said because her dad was exposed to radiation, this led to her developing cancer • UK failed to warn her parents of the possible risk to her health • Held: no breach of article 2 o Radiation didn’t reach dangerous enough levels to warrant UK contracting soldiers o Weren’t satisfied that there was a causal link o Taking into account information available to UK at the time, UK had done all it was reasonably expected to do

Answer 9

ECHR ART 2 • Applicant was a relative of Mr. Da Silva was mistakenly identified as a terrorist suspect and shot dead on 22 July 2005 (shortly after London underground bombings) • Did investigation fulfill procedural requirement of art. 2? • Found that investigation as a whole was within article 2 o Was an effective and thorough investigation into facts, involving all of the appropriate people o ““The Metropolitan Police Service (MPS) had publicly accepted that he had been killed in error by special firearms officers. A representative of the MPS had flown to Brazil to apologise to his family face to face and to make an ex gratia payment to cover their financial needs. They were further advised to seek independent legal advice and assured that any legal costs would be met by the MPS. The individual responsibility of the police officers involved and the institutional responsibility of the police authority were considered in depth by the IPCC, the CPS, the criminal court, and the coroner and jury during the inquest. Later, when the family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation. The decision to prosecute the police authority did not have the consequence, either in law or in practice, of excluding the prosecution of individual police officers as well. Neither was the decision not to prosecute any individual officer due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test”

Answer 10

ECHR ART 2 • Hospital wanted to withdraw artificial feeing/ hydrating of person in vegetative state • Held: article 2 imposes positive obligation to give treatment, BUT not where it would be futile o Discontinuing treatment would not be an intentional deprivation of life under Article 2, when withdrawing treatment was in line with a respected body of medical opinion

Answer 11

ECHR ART 2 • Sick little boy, parents wanted him to receive very new, experimental treatment o UK authorities said no • Held: “Article 2 of the Convention cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way” o Leaving it up to states

Answer 12

ECHR ART 2 • Applicants were relatives of Iraqi civilians killed in southern Iraq by British Armed Forces during occupation of Southern Iraq • -> Was UK responsible under Art. 2 for their deaths? o “A State's jurisdictional competence under Article 1 is primarily territorial. Jurisdiction is presumed to be exercised normally throughout the State's territory. Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases” o UK is responsible for people within its territory, but in exceptional circumstances can apply extraterritorially: • State agent authority and control (e.g. diplomatic staff working overseas) • When there exists “effective control” over an area • Where a contracting party to convention exercising some or all of the public powers ordinarily exercised by the government in that area • Question of fact • In this case, held that UK held this effective control over individuals killed during military operations o TF convention applies • Where contracting party detains a foreign national overseas and holds them in a facility controlled by them

Answer 13

ECHR ART 2 • Extraterritorial effect also applies to British soldiers o “Servicemen and women relinquish almost total control over their lives to the state. It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the state’s behalf”

Answer 14

ECHR ART 2 • Terrorist attack on school in 2004 o 30 terrorists held over 1,000 people hostage • Russian military launches counter-attack hundreds died • Russia found in violation of article 2 for: o Failing to take preventative steps or minimize terrorist attack o Carrying out an ineffective investigation o Being deficient in the planning of the rescue operation o Not establishing clear framework for when lethal force could be used

Answer 15

ECHR ART 10 • Mr. L edited magazine in Austria, published articles accusing chancellor of protecting former members of the SS, who themselves were active in politics • Special Protection under Article 10 for the press. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance

Answer 16

ECHR ART 10 • Press fulfills an essential function in a democracy • It is a “public watchdog” in imparting information of serious public concern

Answer 17

ECHR ART 10 o Richard Crossman was a member of government (Minister), kept diary during his time as cabinet minister • Wanted to publish diary entries in a book • Dies, but widow and friends want to continuing with publishing o Publisher Jonathan Cape agrees o Attorney General sought restraint on publication because believed it contained information about British government which should remain confidential (due to doctrine of collective responsibility) • Also, Breach of Confidence, does this apply to ministers? o Court held that it could be published, refused injunction • In principle, there is a principle of Breach of Confidence which applies to Ministers, but • ‘The Attorney-General must show: o that such publication would be a breach of confidence; o that the public interest requires that the publication be restrained, and o that there are no other facts of the public interest contradictory of and more compelling than that relied upon. • Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.’ Per Lord Widgery LCJ • Issue of timing was very important • 10 years had passed since diary entries were made o Was unlikely that their publication would inhibit free discussion in the cabinet of the day

Answer 18

ECHR ART 10 o Retired UK secret service employee was to publish his memoires in Australia • Details of secret service and allegations of misconduct, including rumors intended to undermine current government o Attorney General sought to bring proceedings in Australian court to prevent publishing • Lost o During court case in Australia, Guardian newspaper in UK wanted to report on details of case in UK • AG took to court in UK -> felt that this would lead to revealing what’s in the book • Held not allowed to report on case o Meanwhile, book published in US, some copies being made available in UK o After this ^^ court held • Principle of Confidentiality/ Duty of Confidence exists, but only applies to information that is confidential • In particular, once it has entered what is usually called the public domain then, as a general rule, the principle of confidentiality can have no application to it”. Per Lord Goff • In this case, so much of the information had ended up in the public domain that the principle of confidence didn’t apply • TF injunction not granted

Answer 19

OFFICIAL SECRETS ACT 1989 • breach of s. 1(1) by ex-intelligence member on publication of autobiography revealing secrets of the service • criminal offence even though information no longer confidential

Answer 20

OFFICIAL SECRETS ACT 1989 • The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the defence that the disclosures had been made by him in the public or national interest was available to him on such a prosecution • Defendant believed a public interest defence could be read into the act, otherwise is a serious encroachment on freedom of expression • Court said NO o Just because there’s no public interest defence doesn’t mean there’s absolutely no disclosure -> internal mechanisms in act which could allow disclosure if circumstances met

Answer 21

ECHR Art 8/ Art 10 • Applicant is Princess Caroline von Hannover of Monaco • Seeks injunction on photos published of her in German newspapers • Germany grants injunction on those photos of her with her children • But she must tolerate the publication of the other photos of her going out and about in her public life because she’s a public figure • Has German court infringed on her article 8 right to private life? • Privacy can include aspects of an individual’s life where they’re not acting in an official capacity including being photographed in public • Privacy and expression must be balanced because they have equal status under convention • Held privacy espeicially important in this case; is a violation of art. 8 because media’s conduct breached her legitimate expectation that her day-to-day private life be kept private o Public had no legitimate interest • Where the purpose of the expression is of low value, i.e. not a contribution to a debate of public interest but is mere gossip then interferences of privacy through expression must be strictly construed

Answer 22

ECHR Art 8/ Art 10 • Photo of the princess on holiday accompanied with article concerning her father’s illness • The Court found that Prince Rainier’s illness and the conduct of the members of his family at the time qualified as an event of contemporary society on which the magazines were entitled to report and to include the photograph to support and illustrate the information being conveyed. • The Court accepted that the photograph, considered in the light of the article, did at least to some degree contribute to a debate of general interest. • Did German denial of injunction violate right to privacy? • Strasbourg says NO o Prince’s illness is a matter of public interest

Answer 23

ECHR Art 8/ Art 10 • Mother due to stand trial in criminal case for murdering one of her sons • Her other son petitioned court that details of woman and son not published, to protect his own privacy • Approach to be taken? Held: necessary to balance rights against each other; no ranking of rights • Injunction request denied o In the public interest o Many details already published/ in the public sphere • Lord Teyn: o Case established the balancing test starting from a position of presumptive equality of expression and privacy o Comparative analysis of importance of specific rights being claimed necessary • I.e. whether expression interest is strong or weak o Justifications for interfering with each right must be taken into account o Proportionality test must be applied to both rights

Answer 24

ECHR Art 8/ Art 10 • Naomi Campbell= supermodel • Had publically stated that she didn’t do drugs o Newspaper published pics of her leaving rehab and details of her treatment o 5 things revealed by newspaper: • 1. The fact that Campbell was a drug addict • 2. The fact that she was receiving treatment • 3. That treatment was provided by Narcotics Anonymous • 4. Details of the treatment she was receiving • 5. Information contained in the photo • Campbell said the info taken together = breach of privacy, sought damages from newspaper • Held: • There is a right in English law to privacy (Development of a new tort of misuse of private information) o Applies between individuals, not just between individuals and state • “The values in Articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper.” • “Rights to privacy and expression have equal status under the Convention, therefore where both are engaged they must be balanced”. Per Lord Hope • • HoL classified all 5 pieces of information as private information o Issues 1 and 2: • When talking to the media Miss Campbell went out of her way to say that unlike many fashion models, she did not take drugs. • By repeatedly making these assertions in public Miss Campbell could no longer have a reasonable expectation that this part of her life could remain private. • Where a public figure chooses to present a false image and make untrue pronouncements about his or her life, the press will normally be entitled to put the record straight” • Held: newspapers could publish this info • On balance, freedom of expression allows this, despite breach of privacy o Issues 3, 4, and 5 • On issue (3) and (4): • Information that Campbell was receiving treatment specifically at Narcotics Anonymous? This was a disclosure of an unremarkable nature • Issue (5): The photos contained private info, were taken surreptitiously. • Hale: • Difference between photos of NC when “she pops out to the shops for a bottle of milk” and photos of her leaving an NA meeting. • Key aspect of the proportionality assessment ‘the nature of the speech’. Political speech, artistic expression, speech keeping those in elected office accountable, deserve higher protection than the speech in a tabloid • Violation of right to privacy outweighs freedom of expression for press

Answer 25

ECHR Art 8/ Art 10 • Mr. M= president of Formula 1 • Filmed engaging in S&M by a newspaper o Newspaper said there was also a Nazi element • Newspaper publishes • Mr. M invoked right to privacy o Denied Nazi element, but not that sex acts took place • Newspaper said public had right to know • Held: • Clandestine recording of sexual activity on private property= right to privacy o No public interest in publish • “Titillation for it’s own sake is not a private interest reason”

Answer 26

ECHR Art 8/ Art 10 • Newspaper publishes information that former footballer/current football captain having affair, despite having said that he was no longer living a wild life • Alleged that he ended the affair because he’s afraid of losing job • Court agrees this is a matter of privacy -> previous reckless behavior doesn’t automatically disqualify an expectation of privacy for sexual relations • But: freedom of expression outweighed his right to privacy o Had claimed publically and in his autobiography that he was a changed man o Was in public interest due to his position as a role model

Answer 27

ECHR Art 8/ Art 10 • An injunction was sought to prevent the publication of names of a celebrity couple allegedly involved in infidelity. The Supreme Court granted an injunction, even though the identity of the couple had been revealed in many other countries. • Newspapers in Eng/Wales say injunction no longer valid because US and Canadian news sources had already published the info • UKSC said they’d keep injunction in place, even though ID of people had already been published in other countries • No real public interest in publishing these details o Just celebrity gossip

Answer 28

ECHR ART 11: ASSOCIATION • Is solitary confinement of prisoners an interference with their freedom of association rights? • Freedom of association is concerned with the right to form or be affiliated with a group or organisation pursuing particular aims. It does not concern the right of prisoners to share the company of other prisoners or to "associate" with other prisoners in this sense

Answer 29

ECHR ART 11: ASSOCIATION political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Art. 11

Answer 30

ECHR ART 11: ASSOCIATION • “Democracy is without doubt a fundamental feature of the European public order” • “There can be no democracy without pluralism” • “The freedoms guaranteed by Article 11, […], cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State’s institutions, of the right to protect those institutions” • So: • a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: o The means used to that end must be legal and democratic o The change proposed must itself be compatible with fundamental democratic principles

Answer 31

ECHR ART 11: ASSOCIATION • Is being a member of a political party protected under Article 11 ECHR? • Applicant is a white male bus driver in Bradford • Elected as local councillor for BNP • Dismissed from job • U.K. Employment Law requires one year of service before an employee can bring an action for unfair dismissal against her employer • Applicant had worked for company for less than one year, can’t benefit from unfair dismissal claim. • Issue: Has UK taken reasonable and appropriate measures to protect the applicant’s freedom of association? • Held: • Violation of Article 11 ECHR • Positive obligation on the state to protect against dismissal based on affiliation with a political party. • U.K. employment law failed to provide applicant with a claim to have the proportionality of his dismissal examined by a court. • U.K. law categorically excludes all possibility of balancing the interests of employers against those of dismissed employees on the basis of their political beliefs or affiliations o Question of proportionality • Applicant must have a right to challenge his dismissal notwithstanding the nature of his political beliefs and his public identification with the BNP’s policies • ECtHR: “the right to freedom of association under Art. 11 must apply not only to people or association whose views are favourably received or regarded as inoffensive, but also whose views offend, shock or disturb’

Answer 32

ECHR ART 11: ASSOCIATION • Employers were using economic incentives to get workers to give up some of their trade union rights. • This was a violation of Art. 11 of both the individuals and the trade unions themselves. • It’s the positive obligation of the state under Art. 11 to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers

Answer 33

ECHR ART 11: ASSOCIATION Freedom of association also includes the right of a trade union to expel one of their members as long as this was not the result of an abusive and unreasonable conduct by the trade union.

Answer 34

ECHR ART 11: ASSOCIATION o In this case there was a closed shop agreement between British Rail and three railway workers unions. The 3 applicants were dismissed by their employer because they refused to join the designated trade union o The Court ruled that Article 11 gives to workers the freedom to choose whether to belong to a given trade union or not and ruled that the UK legislation that allowed dismissal for refusal to join a trade union was in breach of Article 11

Answer 35

ECHR ART 11: ASSOCIATION • Members of a union that had undertaken strike action were subjected to retaliatory measures including: Reassignment of members to special work teams, Decrease in the earning potential of member team, Some were made redundant • Violation of Article 11 ECHR • Positive obligation: “Measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership”

Answer 36

ECHR ART 11: ASSOCIATION • UK statutory ban on secondary industrial action / sympathy strikes challenged by applicants. • The Court held that there had been no violation of Article 11 of the Convention, finding that there was nothing in the facts raised by the applicant union to show that the general prohibition on secondary strikes had had a disproportionate effect on their rights under Article 11. The United Kingdom had therefore remained within its margin

Answer 37

ECHR Art 8 • Crim. case • The applicant believed that both his correspondence and his telephone calls had been intercepted for a number of years • Based his belief on delay to and signs of interference with his correspondence o In particular, he produced bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state o As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping • The Government consistently declined to disclose to what extent, if at all, the applicant’s telephone calls and mail had been intercepted • Court’s assessment: • Where a power of the executive is exercised in secret, the risks of arbitrariness are evident o Not clear what they’re doing, also not clear to citizen what they shouldn’t be doing (i.e. what actions they might be undertaking that would attract the attention of the security services) • The law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence • In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach the conclusion that of the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities

Answer 38

ECHR ART 8 • Young man of Ethiopian origin was held by the US services in various locations across the world for over two years, ultimately confessing to terrorist offences. • He argued that his confession was extracted through torture o Alleged that members of the UK intelligence services had facilitated his questioning o Claimed that the UK had evidence which would prove his confession was the result of torture • Foreign secretary admitted that “he had evidence which could be considered exculpatory or might otherwise be relevant in the context of proceedings” • FS argued that he was under no duty to disclose the documents or the information contained in them and to do so would “in any event cause significant damage to national security of the United Kingdom” • Eventually, the US provided the documents at issue to BM’s lawyers • Case then turned on whether the summary of the papers redacted in the judgment should be restored in the interests of open justice and of equality of the parties in litigation • The paragraphs were eventually reinstated

Answer 39

ECHR ART 6 • Art 6 ECHR is not an absolute right o Art 6 para 1: national security may justify the exclusion of the public from the proceedings • Clarified and upheld principles under which IPC operates • If you have determination made in your favour, you can find out what the security agencies are doing to you o If you have a no determination, you will never find out

Answer 40

SECURITY SERVICES • Privacy advocates challenged bulk interception of communication suggesting it violated Articles 8 and 10 ECHR. They relied on the fact that these powers were not prescribed by law. • IPT found that an adequate indication of the arrangements had been provided by virtue of information released following the commencement of legal action. • The inference of this finding is that the “prescribed by law" deficiencies of the surveillance arrangement were remedied by the transparency effectively imposed on the agencies through the pursuit of legal redress

Answer 41

SECURITY SERVICES • “Wilson Doctrine: introduced in the 60s, security services didn’t tap phones or intercept mail of MPs (incl. MSPs) • Important for political freedom, also their communications are privileged • Case found that existence of Wilson Doctrine had no legal effect • Interception of MP communications complies with convention

Answer 42

SECURITY SERVICES • IPT examined the authorisations made under RIPA s22 for the interception of communications of journalists reporting on the ‘Plebgate’ scandal • The purpose of the authorisations was to enable the police to obtain communications data which might reveal the sources of information obtained by the journalists • The tribunal found that the legal regime in place at the relevant time did not adequately safeguard the important public interest in the right of a journalist to protect the identity of his source under Article 10 ECHR

Answer 43

DATA RETENTION INVESTIGATORY POWERS ACT 2014 • DRIPA = inconsistent with EU law • Lacked clear and precise rules governing access to and use of communications data

Answer 44

ECHR ART 10 • "Article 10 does not… confer on an individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual"

Answer 45

ECHR ART 10 • 'The court reiterates its conclusion… that the freedom to receive information “prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” and that that freedom “cannot be construed as imposing on a state… positive obligations to… disseminate information of its own motion”

Answer 46

FOIA art. 10 confers no general right to freedom of information • S wrote to the BBC requesting a copy of an internal report concerning its news coverage of the Middle East. It was agreed that the report was held by the BBC partly for the purposes of journalism and partly for purposes of ‘strategic policy and resource allocation’. • The BBC is listed in Sch.1 of the Act 'in respect of information held for purposes other than those of journalism, art or literature'. What does this provision exclude? • the Supreme Court considered 3 possibilities: • a) only information held solely for the purposes of journalism, art or literature is excluded; • b) information held predominantly for these purposes is excluded, even if it is also held for other purposes; • c) any information held for these purposes is excluded, even if it is held predominantly for another purpose • By a majority of 4-1, the Supreme Court opted for interpretation (c) (Lord Wilson preferred interpretation (b)).

Answer 47

FOIA • Requested copies of letters between the Prince of Wales and various gov’t departments • Departments refused requests, as did the Information Commissioner, but Upper Tribunal allowed appeal o Attorney General issued a certificate overriding the Upper Tribunal’s decision o E sought judicial review of the Attorney General’s decision o The Divisional Court dismissed his claim, but the Court of Appeal allowed his appeal o The government then appealed to the Supreme Court o Ministerial veto quashed

Answer 48

JR, GENERAL • Per Lord Diplock ``` o Three Heads: • Illegality • Irrationality • Procedural impropriety • (proportionality?) ```

Answer 49

JR, GENERAL (leading case on JR for Scotland!) Held (broadly): Wherever there is an excess or abuse of the power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it) • Tripartite Test: • 1. Power is Conferred 2. On a party entrusted with making decision 3. Whose decision affects the rights/obligations of another person • L. Hope: o No substantial difference in English/Scots law as to the GROUNDS of review • Procedure may be different, but not the ground o Supervisory jurisdiction may only be exercised to ensure that the person/body doesn’t exceed/abuse or fail to do what the jurisdiction, power or authority requires • Categories which fall under this excess/abuse of jurisdiction are not a bused and are capable of being adapted o Court of Session cannot substitute its own view for the decision • It can nonetheless interfere in order to control an abuse or excess of power or failing to act within limits of jurisdiction • Court of Session will only step in to say body has overstepped its jurisdiction and that body must fix it • Not how to fix it • If this test is met, can bring JR proceedings against private bodies as well as public bodies o In Scotland ONLY, doesn’t apply in England

Answer 50

JR, GENERAL • Asylum applicant’s application was originally decided on in Scotland, but appeal was rejected in England • Where could he bring an action of judicial review? o Petitioner must be able to show “a sufficient connection with Scotland” to invoke the supervisory jurisdiction • Factors that the House of Lords considered included: o The petitioner was resident in Scotland o The “harmful effects” were likely to be felt in Scotland o The determination was made exercising a UK-wide jurisdiction • Where both courts have jurisdiction, court which first seized the matter must exercise its jurisdiction to provide the remedy sought o Unless the respondent has taken a plea of forum non conveniens • In this case, application had to be heard in Scotland unless there were exceptional circumstances

Answer 51

JR, GENERAL • Supreme Court: • Lord Hope o Title and interest (both private law) have no place in applications to the court’s supervisory jurisdiction that lie in the field of public law • A person needs to have sufficient interest ONLY • Must distinguish between mere busy bodies o Person has to be directly affected and have a reasonable concern • Lord Reed o Drew distinction between the private law vindication of rights and an application to the supervisory jurisdiction to ensure the compliance of a public authority with the law

Answer 52

ECHR ART 11: ASSEMBLY o The participants must be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents. o ‘[T]he possibility of violent counter demonstrations, or the possibility of extremists with violent intentions, (…) joining the demonstration cannot as such take away that right.’

Answer 53

ECHR ART 11: ASSEMBLY o Anti-abortion demonstration approved in location A o Applied to move to location B, approved but inform organizers that police may not be able to provide protection against counter-protestors o Applicants claim violation of Article 11 ECHR positive obligation: Austria failed to take adequate steps to ensure demonstrations occurred without any trouble. o “A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents.”

Answer 54

ECHR ART 11: ASSEMBLY o A religious group was banned from holding a march in London on the basis that a counter-demonstration by the National Front was being planned and could erupt in violence • Previous marches had ended in violence and damage to property o “Under Article 11(1) of the Convention, the right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration…the possibility of violent counter-demonstrations, or the possibility of extremists with violent intentions, not members of the organising association, joining the demonstration cannot as such take away that right.” o “Even if there is a real risk of a public procession resulting in disorder by developments outside the control of those organising it, such procession does not for this reason alone fall outside the scope of Article 11(1) of the Convention, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision.” o Overall, on balance, the ban was justified • “A general ban of demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures…” • At the time in England, tense atmosphere resulting from a series of riots and disturbances occasioned by public processions of the National Front • Fear of being unable to prevent grave damage to persons and property

Answer 55

Public Order Act 1986 • A group was organising an assembly to be held at Stonehenge. Fearing that damage would be caused to the monument, the chief officer made an order for a trespassory assembly • The assembly went forward as planned on the highway outside Stonehenge and some people were arrested. They challenged the lawfulness of their arrest • The protesters argued that they were not trespassing because they had a right to be on public highway for the purposes of peaceful protest. • The questions for the Court to address: • Does the assembly fall within the scope of s.14A of the 1986 Act: i.e. Was it a trespassory assembly? • Had the police exceeded the limits of the public’s right of access to the highway? • What are citizens or the public allowed to use the highways for? • Held: • To limit lawful use of the highway to that which is literally ‘incidental or ancillary’ to the right of passage would be to place an unrealistic and unwarranted restriction on commonplace day-to-day activities. The law should not make unlawful what is commonplace and well accepted.” • The highway “is a place which the public may enjoy for any reasonable purpose, provided that the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway.” • Peacefully protesting on public highways was permissible

Answer 56

ECHR ART 11: ASSEMBLY o R (on the application of Laporte) v Chief Constable, Gloucestershire (2006) • Police ordered a bus of protesters headed to an RAF base to return to London • HoL found this action of the police to be unlawful • Where no breach of the peace has yet occurred, a reasonable apprehension of an imminent breach was required before any form of preventative action was permissible. To be imminent the officer concerned must “think that [the breach] is likely to happen” • As the chief constable did not consider a breach of the peace imminent when the coaches were stopped, his actions in ordering the coaches back to London was unlawful • In any event, four of the five law lords held that the police action was premature, indiscriminate and therefore represented a disproportionate restriction to Ms Laporte’s Article 11 right • “An individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour”

Answer 57

ECHR ART 11: ASSEMBLY • The claimants had been present during a demonstration policed by the respondent • They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours • “The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances”.

Answer 58

JR Illegality: Error of law • Determined that home secretary had mis-directed himself in law • Had power to set “tariffs” for two young murderers -> reacted to public pressure rather than acting according to statute

Answer 59

JR Illegality: Unlawful delegation | o Committee tasked with decision could not rely on subcommittee

Answer 60

JR Illegality: Unlawful delegation | o local authority could not have BBFC deciding on cinema

Answer 61

JR Illegality: Unlawful delegation whether there may be sub-delegation depends upon the wording of the statute in question and there are circumstances where it could be held to permit sub-delegation

Answer 62

JR Illegality: Unlawful delegation • Officials are taken to be the “altar ego” of their Ministers • Thus, powers and duties conferred to a Minister, may be properly exercised by officials for whom Minister is responsible to parliament o Civil servants can exercise lawfully ministerial power • Equivalent case in Scotland: Somerville v The Scottish Ministers 2007 SC 140

Answer 63

JR Illegality: Unlawful fettering • cannot adopt a policy that certain applications will always be refused, here in relation to the blanket ban on amusement arcades in Norwich

Answer 64

JR Illegality: Unlawful fettering | • a body can adopt a general policy that it will apply in the absence of any exceptional circumstances

Answer 65

JR Illegality: Unlawful fettering In certain circumstances, the adoption of a binding rule can be justified • When it’s in the public interest

Answer 66

JR Illegality: Unlawful fettering • Health authority promised the applicant that she would have a “home for life” • Was this unlawful fetter on future exercise of discretionary powers? o Held: NO, as this gave rise to a legitimate expectation that the authority would keep their word absent an “overreaching justification for [not] doing so” • High threshold test: Has there been a frustration on expectations so large that changing the course of action could amount to an abuse of power? o This leads to public authorities no longer making promises…

Answer 67

JR Illegality: Improper purposes • Appellant bought TV license for £12, right after Minister announced that fee would soon go up to £18 • Home office wrote to people who bought for £12, said if they didn’t pay the difference their TV license would be revoked • Court found that this was an abuse of minister’s discretionary power

Answer 68

JR Illegality: Relevance • (Jamie Bulger case) • Home secretary took account of irrelevant considerations, i.e. public petitions re length of detention for the two young murderers • Trial judge had recommended 8 years o Public felt it was too short • Another judge recommended 10 years • Home secretary had power to exercise his own discretion, said 15 years after having taken into account public opinion • HoL said this was unlawful -> Home Secretary should have only taken into account assessments relevant to child’s welfare • ECHR later said it was unlawful for Home Secretary to set tariff at all

Answer 69

JR, Procedural Impropriety

Answer 70

JR, Procedural Impropriety: Legitimate Expectations | • Legitimate expectation to be released from prison on the originally appointed date of release

Answer 71

JR, Procedural Impropriety: Legitimate Expectations | • A legitimate expectation that procedural guidelines issued by the Secretary of State would be followed

Answer 72

JR, Procedural Impropriety: Rules against bias | • Actual bias: judge is a party to litigation or has an interest in the outcome

Answer 73

JR, Procedural Impropriety: Rules against bias Potential/apparant bias • Sets out test for possible disqualification o “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”

Answer 74

JR, Procedural Impropriety: Rules against bias * Sets out factors that will not lead to potential bias * “Everything will depend on the facts...we cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations...or extra-curricular utterances...or previous receipt of instructions to act for or against any party...”

Answer 75

JR, Procedural Impropriety: Natural justice and fairness o ** remember, in Scotland JR works for both public AND private bodies o Man suspended, then dismissed from club after playing drunk • Not given a fair turn to give his side of the story • Held to be procedurally improper

Answer 76

JR, Irrationality • Livestock importers not given police protection against animal activists • Held to be reasonable because decision-maker had to consider so many competing factors that he determined that 24 hour police protection not necessary to protect their lives

Answer 77

JR, Irrationality • The court held that the council was acting beyond its powers by refusing an application based solely on a view that the concept of performing animals was wrong. • Held policy was irrational -> using powers for improper purposes

Answer 78

JR, Irrationality | • Licensing board took into account irrelevant consideration, therefore decision held to be irrational

Answer 79

JR, Proportionality o In cases concerning Convention rights, domestic courts are to apply the test of proportionality. The same applies to appropriate cases concerning EU law

Answer 80

JR, Proportionality o Per Lord Carnwath:“ • It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the lower courts” o Stage has now been set, only a question of time before a case comes up before SC with the appropriate set of facts to enable it to recognize proportionality as a separate ground of JR • Provided SC has not changed its mind since 2016

PLAIR Cases Flashcards

(104 cards)