In the JR38 case, the Supreme Court today dismissed the appeal of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. Here’s my legal analysis, in a few sentences, of what the Justices held.

RATIO—Riot is not an activity which the right to respect for private life exists to protect, and there is no reasonable expectation of privacy in relation to the publication of photographs of recent rioting for the purpose of identifying those involved. The Convention right to private life is therefore not engaged (Lords Toulson and Clarke, with whom Lord Hodge agreed);

OBITER—Publication as a last resort to identify offenders is justified and proportionate (All five Justices).

 
A minority agreed that the publication was justified, but dissented on the first point, saying article 8 was engaged.

The reasonable expectation of privacy is just one factor relevant to whether article 8 is engaged. A child’s need for protection can go beyond what an adult could reasonably expect. Article 8 therefore includes the need to protect a child from exposure as a criminal (Lord Kerr, with whom Lord Wilson agreed).

 
Here are explanations of the terms ratio, obiter and dissent.

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In the JR38 case, the Supreme Court today unanimously dismissed the appeal
of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. But the Justices were not unanimous in their reasoning.

A majority (Lords Toulson and Clarke, with whom Hodge agreed) ruled that the right to private life is not engaged at all in these circumstances. Riot isn’t an activity which the right to respect for private life exists to protect, they said; and there’s no reasonable expectation of privacy in relation to the publication of such photographs.

Dissenting, Lord Kerr (with whom Lord Wilson agreed) said the reasonable expectation of privacy isn’t the be-all and end-all, since a child’s need for protection can go beyond what an adult could reasonably expect. A child’s identity is protected by the Convention right to privacy when subject to criminal proceedings.

All the Justices agreed, though, that publication as a last resort to identify offenders was justified and proportionate.

Most of the written judgments is taken up by the debate about whether the article 8 right applies at all,  and competing analyses of previous case law. Lord Kerr focused on children’s rights, and the philosophy behind rules protecting the anonymity of child offenders. He said (para. 48)

It does not lie easily with the scheme of protection of a child’s identity envisaged by this provision that the publication of his photograph, for the very purpose of enabling those who know or recognise him to identify him in the course of criminal activity, should not fall within the scope of a Convention provision which guarantees his right to respect for a private life.

The notion that it should not, he said (para. 50)

is distinctly out of step with the philosophy which underpins article 3(1) of [The UN Convention on the Rights of the Child]. That philosophy, so far as it relates to criminal proceedings against children, is prominently proclaimed in article 40(2)(vii) of the Convention which requires states who are party to the Convention to ensure that the child’s privacy is fully respected at all stages of the proceedings.

The core of his reasoning is at para. 53:

A child’s identity should be protected even (or, perhaps, especially) when he or she has been subject to criminal proceedings. The ambit of article 8 of ECHR must be seen as including within its embrace the need to protect a child from exposure as a criminal. That it should apply to the publication of a photograph of a child while, apparently, engaged in criminal activity, must follow inexorably. I consider, therefore, that there has been an interference with the appellant’s article 8 right.

He rejected the idea that a “reasonable expectation of privacy” test was alone decisive (para. 56):

The test for whether article 8 is engaged is, essentially, a contextual one, involving not merely an examination of what it was reasonable for the person who asserts the right to expect, but also a myriad of other possible factors such as the age of the person involved; whether he or she has consented to publication; whether the publication is likely to criminalise or stigmatise the individual concerned; the context in which the activity portrayed in the publication took place; the use to which the published material is to be put; and any other circumstance peculiar to the particular conditions in which publication is proposed.

It would be facile, he said (para. 65)

to say that, because he was rioting, he cannot have expected that a right to respect for private life would be engaged and, on that account alone, it was not engaged. A child’s need for protection can go beyond what, if he was an adult, he would be reasonably entitled to expect.

It’s especially interesting that Lord Kerr gave the lead judgment, outlining the facts of the case. Usually, you’d expect the Justice giving the lead judgment to be in the majority. Lord Kerr’s being a Northern Irish judge might explain it (since this was a Northern Irish case, about rioting in Derry). But it may also be that one of the other Justices changed his mind between the first conference where they discussed the case, and finalisation of the draft judgments.

Lord Toulson and Lord Clarke both write for the majority. Lord Toulson did not see the appellant’s age as critical (para. 95)

The fact that the appellant was a child at the relevant time is not in my opinion a reason for departing from the test whether there was a reasonable (or legitimate) expectation of privacy, but it is a potentially relevant factor in its application.

He did not therefore agree (para. 98)

with Lord Kerr’s suggestion (para 55) that the test of reasonable expectation of privacy … excludes from consideration such factors as the age of the person involved, the presence or absence of consent to publication, the context of the activity or the use to which the published material is to be put. The reasonable or legitimate expectation test is an objective test. It is to be applied broadly, taking account of all the circumstances of the case … and having regard to underlying value or values to be protected.

This seems to be a narrow, somewhat academic disagreement: is the “reasonable expectation of privacy test” just one step in deciding whether the right to private life applies, or are other factors (like the age of the person involved) enfolded within it? But Lord Toulson’s insistence on the need for a reasonable expectation of privacy led him to different conclusions from Lord Kerr (para. 100):

When the authorities speak of a protected zone of interaction between a person and others, they are not referring to interaction in the form of public riot. That is not the kind of activity which article 8 exists to protect.

Lord Clarke agreed (para. 109)

It is difficult to see why article 8.1 should be engaged where the applicant has no reasonable expectation of privacy. It is important in this respect to have regard to the fact that the concept of reasonable expectation is a broad objective concept and that the court is not concerned with the subjective expectation of the person concerned, whether that person is a child or an adult.

He agreed with Lord Toulson that the criminal nature of what the appellant was doing was not an aspect of his life that he was entitled to keep private (para. 112)

He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different …

This is an important an interesting case on the application of the Convention right to respect for private life. The ruling that article 8 does not apply at all matters, because it means police and newspapers will arguably not even have to justify publication of photos in circumstances like these in future (although I imagine in practice they’ll adopt a cautious approach to bring themselves within the court’s unanimous view).

I wonder whether this case will now to to the European Court of Human Rights in Strasbourg – and whether that court might be attracted by Lord Kerr’s “children’s rights” inflected approach to privacy.

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Dennis Skley | Creative CommonsCould a desperate Greece go to court over its financial dispute with Europe? The crisis is more about politics and finance than it is about law. But some reports have suggested Greece might take legal action. So let’s look at the relevant legal texts, and some ways in which – theoretically, anyway – Greece could take its case to European Court of Justice.

We should start with the bailout that’s just run out. This was governed by the Master Financial Assistance Facility Agreement, a contract between the European Financial Stability Fund (a creature of the Eurozone states), Greece itself, and the Bank of Greece. That contract was initially drafted so as to terminate at the end of 2014, but has been extended three times, most recently to extend the “availability period” until the end of June 2015.

Interestingly the agreement is subject to English law, but to the jurisdiction of the Luxembourg courts. See clause 15 of the principal agreement.

But in case you’re thinking Greece could urgently seek some sort of order from a Luxembourg court, failure to renew or an extend an agreement is of course not in itself a breach of that agreement. I don’t think anyone’s suggested there’s been any breach by the EFSF. So Greece’s legal options lie elsewhere.

First, the Greek banking system has as I understand been held up since February by “emergency liquidity assistance”, a system under which the Bank of Greece makes loans to Greek banks and draws down money from an ECB loan facility in order to do so. ELA is operated in accordance with published procedures, but ultimately governed in law by article 14.4 of the Statute of the European System of Central Banks and of the ECB.

Article 14.4 says (somewhat obscurely) –

National central banks may perform functions other than those specified in this Statute unless the Governing Council finds, by a majority of two thirds of the votes cast, that these interfere with the objectives and tasks of the ESCB. Such functions shall be performed on the responsibility and liability of national central banks and shall not be regarded as being part of the functions of the ESCB.

The Governing Council of the ECB and ESCB (the ECB’s executive board plus the governors of the national central banks of Euro states) has already capped the level of ELA to Greece under article 14.4, a couple of days ago. But as the BBC reported,

The ECB could go further … and announce it will withdraw ELA all-together as the country’s bail-out programme officially expires.

Either of these decisions – the one already taken or any future limitation or withdrawal of ELA – could be challenged by Greece under article 35.1 of the Statute, which says:

The acts or omissions of the ECB shall be open to review or interpretation by the Court of Justice of the European Union in the cases and under the conditions laid down in the Treaty on the Functioning of the European Union.

The European Court’s jurisdiction ultimately comes from article 263 of the Treaty on the Functioning of the EU, though, which says:

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank … It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State …

Any decision to restrict ELA is an “act” of the ECB, and so challengeable by Greece in the European Court.

Greece’s argument would be that the ECB, by taking steps likely to push Greece out of the Euro, was in breach its duty under article 127 TFEU through the ESCB to

support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union as laid down in Article 3 of the Treaty on European Union

objectives which include establishing

an economic and monetary union whose currency is the euro.

Secondly, Greece yesterday asked for a new type of bailout: a loan under the Treaty establishing the European Stability Mechanism. The Board of Governors of the ESM is made up of Eurozone finance ministers, and has power to agree a loan to Greece under article 16 of the ESM Treaty (note the reference to a “Memorandum of Understanding”, however, which would mean conditionality; it’s discussed further in article 13.3).

The Board seems already to have refused the loan, or else has refused to consider it pending the Greek referendum next Sunday.

Article 37 of the ESM Treaty gives Greece a second way of “appealing” to the European Court of Justice. It must first ask the Board in effect to review its refusal under article 37.2, and assuming it maintains its refusal, Greece can then take the dispute to the ECJ under article 37.3:

If an ESM Member contests the decision referred to in paragraph 2, the dispute shall be submitted to the Court of Justice of the European Union. The judgement of the Court of Justice of the European Union shall be binding on the parties in the procedure, which shall take the necessary measures to comply with the judgment within a period to be decided by said Court.

Greece’s argument here would be that by refusing to consider or grant a loan, the ESM is acting contrary to its article 3 purpose

to mobilise funding and provide stability support under strict conditionality … to the benefit of ESM Members which are experiencing, or are threatened by, severe financing problems, if indispensable to safeguard the financial stability of the euro area as a whole and of its Member States.

So there are two types of legal challenge open to Greece: against the EBC’s restriction or withdrawal of ELA, under the main TFEU Treaty; and an ESM Treaty challenge to the refusal of (or refusal to consider) an ESM loan.

Greece would surely want to suspend the restriction of withdrawal of ELA – something that can be ordered by the European Court, under article 278 TFEU. Or Greece might want to compel the grant or consideration of an ESM loan. It would have to argue that the ECJ had power to grant interim measures requiring this in an ESM Treaty case, under (or by analogy with) article 279 TFEU.

So there are ways in which Greece could take its argument to the European Court. But judges are not economists or financial experts; and in the real world, the chances of the ECJ ruling against the ECB and Eurozone ministers and ordering ELA support or an ESM loan – let alone that Greece can obtain such an order in time to influence financial events – must be vanishingly small.

Thirdly and less immediately, Greece could take its fellow Eurozone member states to the ECJ under article 259 TFEU, alleging breach of their duties of sincere and loyal cooperation by failing to take all steps necessary to keep Greece in the Euro. But by then, it’d all be too late.

 

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The CPS has announced that Lord Janner is to be prosecuted for child sex offences alleged to have been committed between 1963 and 1988. This follows a review by David Perry QC under the Victims’ Right to Review Scheme, reversing the DPP’s original decision that prosecution would not be in the public interest. The CPS statement says –

In reaching that conclusion, the review agreed that although there is sufficient evidence to prosecute, it is right to assume that Greville Janner will inevitably be found unfit to plead and therefore not fit to instruct his legal team and not fit to challenge or give evidence in a trial. Therefore the most likely outcome of a “trial of the facts” would be an absolute discharge, which is neither punishment nor conviction.

There will be 22 charges, 7 of buggery and 15 of indecent assault. All are under the Sexual Offences Act 1956, which applied on the relevant dates; that Act preceded the Sexual Offences Act 2003, section 9 of which would apply now.

The DPP’s original decision not to prosecute was based on the evidence of four doctors, who found that Lord Janner has rapidly deteriorating dementia requiring continuous care; that he could not have any meaningful engagement with the court process; that there’s no prospect of recovery; and that it’s “out of the question” that he’s “putting it on”.

That led the CPS to think Janner would inevitably be found not fit to plead, and therefore a criminal trial to determine his guilt could not properly take place. The CPS did consider proceedings to “launch a fitness to plead process” (see paras. 20-21 of the DPP’s original statement) but concluded

that the outcome of such proceedings would not only be without conviction, but would also result in an absolute discharge. The medical evidence establishes both that there is no current risk of re-offending identified and that there is no likelihood of the defendant recovering from his medical condition (and thus that there is no future risk of reoffending either). Balancing these factors with those in favour of prosecution, the balance is that there is not a public interest in commencing criminal proceedings in this case.

It’s also important to mention that she said (para. 22 of the original statement), in relation to the complainants’ wish to tell their stories publicly,

I sincerely hope that this can be achieved through the victims giving evidence before the Independent Inquiry into child sexual abuse. I have referred this to the Inquiry team which has confirmed that this case would be covered by the scope of the Inquiry and that those who have made allegations in this case would be able to give evidence to the Inquiry. They have offered to speak to the complainants to explain this.

The review agrees with the original CPS view that no trial is likely, then; and that an absolute discharge is the probable outcome. It seems David Perry QC has taken the view that prosecution is nonetheless in the public interest because the inquiry “cannot substitute for the adjudication of the courts”.

Alison Saunders has taken a lot of stick over her original decision. One of her recent predecessors Lord MacDonald QC suggested it was wrong. It’s fair to mention, though, that Saunders has also been criticised when the CPS has decided to prosecute sex offences, as well as when it’s not. Many attacked the prosecution of Nigel Evans MP, for instance, and in relation to that case Lord Macdonald is reported as having said

What the CPS needs to avoid … is going on a mission and losing perspective. This particularly applies to historical cases which have garnered a lot of publicity. You have to keep a cool head.

Challenges to the DPP on this subject seem routinely to come from both sides. In this Newsnight interview from last year it’s worth noting that Laura Kuennsberg in her questioning both suggested victims can’t have confidence that the DPP will prosecute historic cases, and that she should focus instead on contemporary allegations. Time and again we see (as I said in my Nigel Evans piece)

how easy it is for armchair critics to attack the CPS (like social workers) for acting, or not acting, or once again for acting – according to the transient Zeitgeist.

It should also be remembered that the CPS’s prosecution of journalists in Operation Elveden was not popular among many of their colleagues. Critics of those decisions must criticise them on their merits, though – not try to avenge them under cover of the Janner case.

Nor, I have to say, can I persuade myself that widespread, varied criticism of Alison Saunders is entirely unrelated to her being a career civil servant, the first DPP who’s not a QC, and female (we’ve only had one woman DPP before, and her Telegraph obituary says she held the post “amid growing controversy about her effectiveness and personal style”).

Saunders’s original decision was entirely reasonable. That fact that she brought in David Perry QC to undertake the review is to her credit – and he has simply taken a different view. We’ll see in due course what a court makes of it.

If we’re to have a right of review (and the the Court of Appeal’s judgment in Killick in 2011 says we must) then this sort of thing is bound to happen. Hundreds of decisions not to prosecute have been reversed under the scheme – this is simply the case with the highest media profile. It’s absurd to think someone should resign when this happens (or when the papers take an interest), and raises the equally silly question whether, if a reviewed case is prosecuted but results in acquittal, the reviewer should resign and the original decision-maker be reinstated.

Of course Alison Saunders should not resign over the Janner case. Her critics will agree the DPP must be independent of political and media pressure; but in this exceptional case they’ll no doubt feel entitled as politicians or journalists to pile pressure on her. Her job, though, is not to make popular decisions, and above all not to bring popular prosecutions.

As the Secret Barrister wrote the other day,

All that a resignation from Alison Saunders means is that any future DPP – and any current CPS charging lawyer – will always militate in favour of prosecuting, out of fear for their security of tenure

and as Lord Pannick QC wrote in the Times in April,

Alison Saunders deserves the support of the legal community against the unjustified attacks she has faced, many of them woefully ill-informed and surprisingly eager to sacrifice the basic fairness to the defendant which is a fundamental feature of the rule of law.

The DPP will be seen to be independent if Alison Saunders keeps her job. I hope she continues in it for some time.

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Same-sex marriage: the US, Europe and the Obergefell questions

June 25, 2015

The US Supreme Court’s opinion in Obergefell v Hodges – it may come out today, or next week – will be historic whatever it decides. The main question is whether the Fourteenth Amendment to the US Constitution with its guarantee of the “equal protection of the laws” requires states to allow same-sex marriage. Either it […]

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Proportionality, at length: the Supreme Court’s “QASA” ruling

June 24, 2015

The Supreme Court has in today’s judgment in R (Lumsdon) v Legal Services Board ruled lawful the Quality Assurance Scheme for Advocates, as approved by the Legal Services Board. The scheme will require advocates to seek accreditation, which will require performance assessment by trial judges. The judgment’s unsurprisingly been welcomed by the Legal Services Board, […]

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Will Obamacare survive “destructive analysis”?
King v Burwell in the US Supreme Court

June 23, 2015

It may be on Thursday; it may be next week. But soon, the US Supreme Court will give its opinion in King v Burwell, a case on interpretation of the Affordable Care Act with huge potential consequences for President Obama’s healthcare reform. From an English point of view, the legal argument being made for the […]

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First Reading: Ellie Cumbo on her
Ground of Divorce and Dissolution Bill

June 19, 2015

I met the campaigner Ellie Cumbo earlier this week to discuss her Ground of Divorce and Dissolution Bill, published here yesterday. We talked about why she wants to bring in “no fault” divorce, how her model would work, and why she thinks divorce reform is such a difficult subject. She says – Where I think […]

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First Reading: Ellie Cumbo’s
Ground of Divorce and Dissolution Bill

June 18, 2015

First Reading is a new regular feature in which I ask campaigners, writers and thinkers what law they’d change, if they could table their own “private person’s bill” in Parliament. My first guest is the campaigner and policy researcher Ellie Cumbo – and here’s her Ground of Divorce and Dissolution Bill, to radically reform the law […]

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Psychoactive substances: Labour’s February 2015 amendment to the Serious Crime Bill

June 8, 2015

Anyone following the progress of the Psychoactive Substances Bill (the general principle of which which be debated on Second Reading in the House of Lords tomorrow) may be interested in this amendment tabled by Labour’s Home Affairs team (as “NC21″) at Report Stage on the Serious Crime Bill earlier this year. New psychoactive substances (1) It is an […]

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