LEVEL 6 - UNIT 12 – PUBLIC LAW SUGGESTED ANSWERS - JANUARY 2014

Note to Candidates and Tutors:

The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2014 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers.

Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination.

SECTION A

Question 1 The Executive, Cabinet Government and the Office of Prime Minister

The Executive The Executive is entirely the creature of custom and owes little to statute or even common law, although its existence is recognised in some statutes such as the Ministerial and Other Salaries Act 1975. While Parliament could confer powers on the Cabinet and the Prime Minister it rarely does so. Powers are conferred on individual ministers.

The executive function comprises, broadly, the whole corpus of authority to govern, other than that which is involved in the legislative functions of Parliament and the judicial functions of the courts. Historically the Executive was identified with the monarch in whose name many acts are now performed by the Prime Minister and other ministers. The Executive comprises all officials and public authorities by which the functions of government are exercised including the civil service and armed forces. Executive functions are also performed by the police, local government and many statutory bodies and executive agencies, such as the Prison Service, as well as by executives with devolved powers in Scotland, Wales and Northern Ireland. Membership of the European Union entails the exercise by the Council and the Commission of some executive functions in relation to the UK. In a narrow sense the Executive comprises ministers and the civil service.

The power of the Executive is circumscribed to some extent by the doctrine of the separation of powers, though the members of the Executive are required by custom to sit in one or other of the Houses of Parliament. However, there is a statutory limit on the number of ministers who may sit in the House of Commons. Technically the Legislature controls the Executive as it can oust a Page 1 of 16 government which is unable to command a majority in the House of Commons but so long as the Cabinet has the support of the Commons it has far reaching control over the functioning of Parliament. Apart from the courts, there is no further accountability apart from the Select Committee system, the Comptroller General and the Parliamentary Commissioner for Administration.

The independence of the Judiciary from the Executive is secured by law, constitutional custom and professional and public opinion. By virtue of s3 Constitutional Reform Act 2005 all ministers of the Crown “must uphold the continued independence of the judiciary.” The Judiciary constitutes a further check on the Executive, principally by way of judicial review (see M v Home Office (1994)).

The Cabinet At the centre of the Executive is the Cabinet. L S Amery wrote: “the central directing instrument of government, in legislation as well as in administration, is the Cabinet” (“Thoughts on the Constitution 2nd ed 1953). The Cabinet provides the collective leadership of the majority party in the House of Commons. The institution has evolved since the 18th Century along with the office of Prime Minister. It has been said that since the Second World War Cabinet government has become Prime Ministerial government, notably under Margaret Thatcher and . Thus, on occasion, the role of the Cabinet as a forum for the discussion of policy has been displaced by the consultation by the Prime Minister of a small group of senior colleagues i.e. that collective Cabinet decision-making was replaced by mere responsibility for the implementation of policy. Lord Butler’s Review of Intelligence (2004) criticised this trend.

No statute regulates the composition of the Cabinet which usually consists of 22 or 23 members. However, the maximum number of salaried cabinet posts is governed by statute i.e. not more than 20, apart from the Prime Minister and Lord Chancellor. It is almost obligatory to include the Foreign Secretary, the Home Secretary and the Chancellor of the Exchequer in the Cabinet. Other key ministers may not have departmental responsibilities such as the Lord President of the Council and the Chancellor of the Duchy of Lancaster. It is normal for some ministers to be drawn from the Upper House including the leader of the House of Lords.

With the increasing complexity of government the Cabinet could not have kept abreast of its work without a Secretariat (headed by the Cabinet Secretary, who is frequently also head of the Civil Service) and a complicated network of committees. There were some 45 in 2009. They relieve the Cabinet of a considerable burden and support the principle of collective responsibility. Since 2010 the most important committee has been the Coalition Committee.

Cabinet decisions are binding on all members of the government. The privacy of opinions expressed in Cabinet is considered to be vital. Serving Cabinet Ministers would be liable to lose office if they revealed Cabinet secrets. The work of the Cabinet is shrouded in secrecy and Cabinet papers are released only after 30 years (Public Records Act 1958). It is argued that the secrecy is essential for good government but the secrecy extends far beyond what is required for national security. For example, the Chilcott Inquiry on the Second Iraq War has had great difficulty in obtaining relevant papers from the Cabinet Secretary. Incoming governments do not have access to the Cabinet papers of an outgoing government of a different political party. However, former ministers do have the right of access to papers which they dealt with when in office.

Page 2 of 16 Cabinet papers are also preserved from scrutiny by way of Public Interest Immunity (PII) procedure whereby the court may authorise non-disclosure of documents the disclosure of which is claimed to be injurious to the public interest. They may also be protected by the Official Secrets Acts 1911-89. The position of former Cabinet ministers was considered in A-G v Jonathan Cape Ltd (1976) in connection with the publication of the diaries of the late Richard Crossman. The court found that publication could be permitted if the existing confidentiality status of the material could not be proven. No reference was made in the judgment to the Privy Councillor’s oath or to the Official Secrets Acts. Subsequently, a Committee of Privy Councillors recommended an informal procedure whereby confidential communications between ministers or between ministers and civil servants should not be published for 15 years without clearance from the Cabinet Office.

The Office of Prime Minister The office acquired its present form with the advent of the modern party system. The office is held with the older office of First Lord of the Treasury. Since 1937 the statutory provision of a salary and a pension has assumed that the PM is the First Lord. The office has since been recognised increasingly by statute such as the Chequers Estate Act 1917. The office is occasionally, but rarely, held with another office such as Foreign Secretary or Minister of Defence. The PM is also minister for the Civil Service. In that capacity the PM is responsible for the appointment of commissioners to oversee the interception of communications and the work of the intelligence services (CCSU v Minister for the Civil Service (1984)). His approval is required for the appointment of most senior civil servants and important Crown appointments are filled on his nomination, subject to consultation with any relevant commissions.

In the Cabinet the PM is the most powerful voice by virtue of being the leader of the majority party in the House of Commons, but depends upon the confidence of his Cabinet colleagues and that of the parliamentary party.

The Prime Minister makes all appointments to ministerial office and settles their order of precedence. He may also dismiss them or advise the Queen to do so. He also controls the machinery of government, as he decides which tasks shall be allocated to which departments. In the Coalition the allocation of ministerial posts is governed by the Coalition Agreement for Stability and Reform.

The PM controls Cabinet business by settling the agenda and order of business. He takes the sense of each meeting rather than putting issues to the vote.

The doctrine of collective responsibility helps to reinforce the position of the PM. Ministers must not criticise cabinet decisions in public and, if necessary, must defend them, though this appears to break down where governments are coalitions.

Compared with Cabinet colleagues, the PM has a more regular opportunity to present and defend government policy in Parliament and has regular meetings with the Queen whom he keeps informed of the Cabinet’s handling of affairs. Exceptionally, she attended a Cabinet meeting at Downing Street in 2012.

Question 2 (a) The and Strasbourg Jurisprudence

The criticism of the Human Rights Act 1998 (“HRA 1998”) has a number of contradictory and seemingly irreconcilable strands. Page 3 of 16

(i) Political Criticism

(1) There is a general resentment of European law and institutions which has been exacerbated by the crisis in the Eurozone; however, there continues to be some confusion between Strasbourg and Luxembourg jurisprudence in that regard.

(2) There is an objection to foreign judges determining our law when we have a highly respected Supreme Court of our own.

(3) There is a feeling that the legislature and not judges should be deciding matters of social policy, such as votes for prisoners.

(4) There is a sense of outrage that foreign nationals convicted of serious crimes, such as murder or suspected of terrorist activity, cannot easily be deported. Some politicians have criticised the judiciary (probably unfairly) for following Strasbourg jurisprudence slavishly.

(5) Strasbourg jurisprudence is seen as an infringement of the sovereignty of Parliament.

(ii) Concern among the UK Judiciary:

(1) The European Court of Human Rights (“the HR Court”) needs reform not least because of the strain imposed by its workload; there is a backlog of some 150,000 cases.

(2) The judgments of the HR Court are often not well argued and perfunctory, and do not rely sufficiently on precedent. (This criticism applies with equal strength to the decisions of the European Court of Justice).

(3) The senior judges would like to see the HR Court concentrate on cases where difficult or novel principles are concerned and leave the day to day work to the national courts exercising perhaps a greater “margin of appreciation” than the HR Court currently permits. This is very much the view of Lord Hoffman who has emphasised that the rights contained in the HRA 1998 are now domestic rights as much as Strasbourg rights.

(4) There is concern that the mechanism for the appointment of judges to the HR Court is insufficiently robust.

(iii) The Aspirations of Libertarians

Some libertarians would like to see the ECHR extended to include social and economic rights. Others would go further and enshrine ECHR rights along with social and economic rights in a Bill of Rights as a fundamental or basic constitutional law so that the courts could strike down legislation which infringed such constitutional rights.

(b) A Bill of Rights

Generally In March 2011 the Coalition Government established an independent commission to investigate the creation of a UK Bill of Rights that would incorporate and build on the UK’s obligations under the ECHR. The Commission was to report by the end of 2012. The Commission has consulted widely but has not yet reported. The Page 4 of 16 Government’s announcement stated that it would be pressing for significant reform of the HR Court. That was in line with the Coalition’s Programme for Government.

(i) The Politicians The politicians have been the most vociferous critics of the ECHR and of the judiciary in interpreting the legal effect of its Articles. However, none of the three major parties has an adopted policy to resile from the ECHR itself. That being so, through our membership of the Council of Europe and our accession to the ECHR we are bound to recognise the HR Court. The HR Court has been influential in rectifying some important human rights abuses in the UK, such as telephone tapping (Malone v (1984) ECtHR).

The obligation to follow Strasbourg jurisprudence would not be removed by repealing the HRA 1998. The UK courts were obliged to take cognisance of Strasbourg jurisprudence from the moment it recognised the HR Court. The consequence of repealing the HRA 1998 would be to remove the availability to the citizen of a Convention remedy from the UK courts instead of having to apply to Strasbourg and would diminish the UK’s influence on Strasburg jurisprudence.

Moreover, the HRA 1998 does not infringe the sovereignty of Parliament as Parliament retains the right to legislate in a manner which conflicts with ECHR rights notwithstanding the provisions of s3 HRA 1998.

It would be possible to repeal the HRA 1998 and replace it with a UK Bill of Rights which set out, inter alia, how the UK courts would handle Strasbourg jurisprudence but not incorporate the ECHR articles directly into UK law. It would also be possible to preserve direct access for the citizen to UK courts on ECHR issues.

(ii) The Judiciary The other option is to work for the reform of the HR Court. This could take the form of ensuring that the Court focuses on fewer cases and also recognises a greater margin of appreciation where national supreme courts have recognised and applied the basic legal principles laid down by Strasbourg.

The mechanism for appointing judges to the HR Court cries out for reform. Members of the court are appointed by contracting states and there is the danger of political interference. States have complete discretion as to the choice of nominees and some have lacked the requisite human rights expertise. Moreover, judges have to be re-elected after a six year term. There should be minimum standards for selection procedures; advertisement of vacancies and an independent assessment of the candidates.

(iii) The Libertarians In the current political climate there is little chance of the rights enshrined in ECHR and recited (Article 13 excepted) in HRA 1998 being augmented by the establishment of additional social and economic rights in a UK Bill of Rights. However, there is something of a problem in this area in that as the European Union gradually extends economic and social rights it increasingly appears anomalous that they are not recognised in the same way as existing ECHR rights. A fortiori there is even less chance of human rights being enshrined in a UK fundamental constitutional Bill of Rights which would empower the judiciary to strike down offending legislation passed by Parliament. That would certainly put an end to the hallowed sovereignty of Parliament.

Page 5 of 16

Question 3 Right to a Fair Trial

The right to a fair trial is central to common law jurisprudence on natural justice and is reinforced in Article 6 of the European Convention on Human Rights (“ECHR”). This provides that the citizen has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. In criminal law the Article embraces everything from police investigation to appeals.

Two vital principles underpin the UK’s legal system: (i) the principle of open justice i.e. evidence must be given in public (Scott v Scott (1913) AC) and the principle of natural justice. (Ridge v Baldwin (1964) AC)

Open justice is vital to the rule of law. “Open Justice lets in the light and allows the public to scrutinise the workings of the law, for better or worse” (Per Toulson LJ in R (otao Guardian News & Media Ltd) v City of London Magistrates Court (2012) EWCA). There are exceptions to the principle (e.g. Official Secrets Acts 1911-89) but they have to be justified by some more important principle e.g. where openness would put at risk the achievement of justice (R v H (2004) UKHL). Proceedings will be heard in private and the parties anonymised only and to the extent that it is necessary for the proper administration of justice (Pink Floyd Music Ltd & Anor v EMI Records Ltd (2010) EWCA).

The principle of natural justice predicates that each of the parties to a dispute has the opportunity to respond to and to test the evidence of the other (the principle of audi alteram partem).

(b) On the other hand, the courts have long experience of protecting the confidentiality of information, particularly information held by the government, under the public interest immunity (PII) procedure. By that procedure a judge can order the disclosure of information which would not damage the public interest; or he can order the gist of such information to be revealed or redacted. The judge can also permit a witness to give information anonymously (In re Times Newspapers Ltd (2008)). Under existing PII rules judges have never ordered the disclosure of material damaging to the national interest.

Moreover, there is some provision for secret trials, for example when the Home Secretary’s decision to make serve a notice under the Terrorism Prevention and Investigatory Measures Act 2011 (“TPIMA 2011”). TPIM notices replaced control orders. Much of the evidence against a TPIM subject will be based on secret intelligence reports, the release of which could prejudice the work of the security and intelligence services. Thus, under the provisions of the TPIMA 2011 the TPIM subject may be (i) excluded from part of the proceedings; (ii) be denied access to all the evidence being used against him; (iii) not be given the full decision of the court if the public interest requires it. Special advocates may be appointed to represent the subject in court but the subject has no right of choice and there are restrictions on the ability of the Special Advocate to communicate with the TPIM subject or his legal representative.

It is interesting that in Home Secretary v AF (2009) (a judgment that related to the Terrorism Act 2005, later repealed by the TPIMA 2011), the House of Lords held that the Civil Procedure Rules were to be read in such a way as to ensure that the controlled person has “sufficient information about the allegations against him to give effective instructions to the Special Advocate”. The current Rules are contained in Part 80 (RSC).

Page 6 of 16 The Coalition Government obtained wider powers in the Justice and Security Act 2013 (“the JSA 2013”). Part 2 of the Act creates a closed material procedure (CMP) for the hearing of evidence, the disclosure of which would, allegedly, be damaging to the national interest. The judge would hear such evidence in the absence of all the parties to the case except for a Special Advocate and lawyers acting for the Secretary of State. The Act does not apply to criminal proceedings but does apply to all civil litigation including claims against the state for damages for assault and also imprisonment.

The Government had argued that it had been unable to defend claims for damages when the evidence on which it sought to rely involved national security considerations. This issue arose crucially in the case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (2010) EWCA where references to sensitive security material which the USA administration wanted to be withheld from publication were first redacted and then released by the Court of Appeal. Because such material could not be e disclosed the Government claimed it has no choice but to settle and pay damages in unmeritorious cases, or to seek to persuade the court that the case cannot be tried fairly and thus should be dismissed. A number of claims by Libyans who alleged that they were tortured after extraordinary rendition to Col Gaddafi were settled out of court.

For a court to decide a case in reliance on evidence that one side has not had a chance to challenge may well amount to an unfair hearing in Article 6 terms. “To be truly valuable, evidence must be capable of withstanding challenge… Evidence which has been insulated from challenge may positively mislead” (per Lord Kerr of Tonaghmore in al-Rawi & Anors v The Security Service (2011) UKSC).

The JSA 2013 requires the judge to ignore PII and any other solution to the problem and he will be obliged to order CMP even if he regards the material in question as being of very little significance in the proceedings. Moreover, he has no power to conclude that the damage to the public by disclosure would be minimal and the damage to the proceedings substantial if CMP were adopted. Nor does he have any power to order a public hearing if he considers that fairness would be promoted better thereby.

Question 4 Whistleblowing

The leaking of Government information is not a new thing. In connection with the sinking of the Argentinian battleship General Belgrano (ex US Navy), Clive Ponting, a civil servant in the Ministry of Defence, sent two confidential documents to the Labour MP, Tam Dalyell, purporting to show that the battleship was sighted a day earlier than reported and that it had been steaming away from the British task force when it was sunk.

Ponting was charged under s2 of the Official Secrets Act 1911 (R v Ponting (1985)). The judge, in his direction to the jury, stated: “the public interest is what the government of the day says it is”. Nevertheless, Ponting was acquitted and the case led to the enactment of the Official Secrets Act 1989 which gave effect to the trial judge’s view of the public interest. But it also stimulated interest in the concept of “the public’s right to know”.

For governments to operate effectively there needs to be trust between civil servants and ministers. The issue is whether there are matters of genuine public concern for which there is no mechanism for bringing them to light and also what happens to civil servants who do shed light on dark corners.

Page 7 of 16 In 1998 the UK enacted the Public Interest Disclosure Act (”PIDA98”). In 2009 the Council of Europe recognised that this was one of the most comprehensive pieces of legislation of its kind, though it has been rather played down in the United Kingdom. The Act is intended to offer protection to public and private sector employees from the moment their employment commences. There is no qualifying period.

The types of wrongdoing that can be raised are:

A criminal offence Breach of a legal obligation Health and safety danger An attempt to cover up one of the above categories which has taken place or is likely to.

The protection falls into three categories:

Concerns raised internally Concerns raised with regulators Concerns raised with the media and MPs

In basic terms the legislation is intended to protect the reasonable and honest whistle-blower who has raised an issue of genuine public interest.

The difficulty of raising concerns internally and externally was exemplified by the case of Elizabeth Wilshurst, a Foreign Office lawyer, who resigned in order to ventilate her concerns about the legality of the Second Iraq War. Moreover, the employment legislation is at odds with the provisions of the Civil Service Code where persons want to raise cases externally i.e. with regulators, the media or MPs. (See also s 43B(3) Employment Rights Act 1996). And if the matters raised are covered by the Official Secrets Act 1989 there is no protection under the PIDA98.

The arrest of Damian Green MP for allegedly leaking Home Office information in 2009 led to the inquiry by the Public Administration Select Committee. In its report Leaks and Whistleblowing in Whitehall (2009) the PASC recommended:

 The Civil Service Commissioners should have the power to report to Parliament evidence that the Government was misleading the public or that the Civil Service had refused to act on a justified complaint.

 The Commissioners should conduct independent investigation of leaks by special advisers and report to Parliament if ministers failed to act on them.

 The leaking of information should be a criminal offence only if contrary to the Official Secrets Acts.

 The Commissioners and the Cabinet Office should ensure that potential whistle blowers know how to raise concerns.

Page 8 of 16 SECTION B

Question 1 Retention of Fingerprints, DNA and Photographs

Generally It is unlawful under s6 Human Rights Act 1998 (“HRA 1998”) for a public authority to act in a way which is contrary to a Convention right.

Article 8 of the European Convention on Human Rights (“ECHR”) provides:

“(1) Everyone has the right to respect for his private life…

(2) there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime.”

In 2005 the Secretary of State issued a Code of Practice on the Management of Police Information (“the MoPI Code”). The Association of Chief Police Officers (ACPO) produced guidance under the the MoPI Code entitled “Guidance for the Management of Police Information (“the MoPI Guidance”).

The Secretary of State also produced a code of practice for the Police National Computer entitled The PNC Code of Practice (“the PNC Code”). Under that Code ACPO produced guidelines (“the Guidelines”) setting out a procedure for the destruction of fingerprints, DNA and DNA profiles in exceptional circumstances: “Exceptional Case Procedure for Removal of DNA, Fingerprints and DNA Profiles” (2006).

Fingerprints The taking of fingerprints undoubtedly interferes with the right to private life under Article 8 ECHR (McVeigh, ONeill and Evans v United Kingdom (1981) ECtHR) as does their retention (Kinnunen v Finland (1996) ECtHR). Fingerprints constitute a person’s personal data as do DNA and DNA profiles and photographs taken by the police of detainees and others assisting their enquiries (“the material”).

S61 PACE 1984 permits the police on the authority of a police inspector to take fingerprints without consent in a wide range of circumstances. S64 PACE 1984 provided that if fingerprints or samples are taken from a person in connection with the investigation of an offence and that person is subsequently cleared of the offence or is not suspected of having committed an offence, the materials must be destroyed as soon as practicable.

However, s64(1A), introduced by the Police and Criminal Justice Act 2001, amended PACE 1984 so that there was no longer a statutory time limit for the retention of material or any procedure to regulate its destruction. The way in which the police operate under this section is dealt with in accordance with the Guidelines. The underlying premise of that document is that, save in exceptional cases, all material obtained from suspects in connection with an investigation shall be retained indefinitely.

However, that is not the meaning of the statute. Unsurprisingly, the premise on which the Guidelines was based was declared unlawful in S and Marper v UK ECtHR (2009), overruling the House of Lords. The European Court of Human Rights (“the HR Court”) found that “the blanket and indiscriminate nature of powers of retention of fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences …fails to strike a fair balance between Page 9 of 16 the competing public and private interests…” and that consequently there was a disproportionate interference with the claimants’ right to private life (Article 8 ECHR). The discretion contained in s64 must be used for the statutory purposes; it does not justify a blanket or disproportionate practice. What Parliament intended was a proportionate scheme to give effect to the statutory purposes and compatible with ECHR (R (GC) v United Kingdom (2011) UKSC). S64(1A) does not permit the indefinite retention of as many samples as possible. It permits a policy that is less far-reaching than the ACPO guidelines.

The Government’s reaction to the judgment of the HR Court in S & Marper was contained in the Crime and Security Act 2010 which allowed for: (i) the indefinite retention of samples of people convicted of an offence; (ii) the retention for six years of the samples of adults arrested but not convicted; (iii) the retention for up to three years of the samples of people aged under 18 arrested but not convicted.

The Coalition Government introduced legislation to amend the 2010 Act (which never came into force) in the form of the Protection of Freedoms Act 2012.Part 1 concerns the regulation of biometric data. It introduces a presumption that such data taken by the police or with the consent of an individual must be destroyed unless one or more of the exceptions contained in the Act applies in which case the material may be retained for a specified period. Data held in respect of persons charged with minor offences will be destroyed following a decision not to charge or in the case of acquittal or unlawful arrest. In all other cases i.e. “qualifying cases” the retention period is reduced to three years where the person does not have a previous conviction in respect of a “recordable offence”. In other cases the data may be held indefinitely. The new provisions are quite complex but because they do not amount to a blanket retention policy they probably meet the basic strictures of the European Human Rights Court in S & Marper. DNA

After the introduction of s64(1A) PACE 1984 the power to take and retain DNA samples and profiles was further widened by the Criminal Justice Act 2003 (“the 2003 Act”) which enabled a DNA sample to be taken from any person arrested for a recordable offence and detained in a police station, whether or not they are subsequently charged. Any such sample, and the profile derived from it, could be retained indefinitely.

The question of the retention of DNA taken under s62 PACE 1984 is rather different from that of fingerprints and photographs. Because of the amount of information they contain, cellular samples and DNA profiles have a more important impact on private life than the retention of fingerprints (and photographs). Such samples are stored on the National DNA database. Until recently such data was kept on the database in perpetuity regardless of whether the citizen was subsequently charged or convicted of an offence. The database holds information about the innocent as well as the guilty and currently holds information about some four million people.

The police are authorised to check such samples against other information or samples held by or on behalf of the police (s63A PACE 1984). However, the database was not established under any legislation nor was there any statutory body responsible for its management and supervision.

Page 10 of 16 It was not surprising that this arrangement was challenged. In S & Marper the HR Court found that the retention of the DNA of S and Marper was in breach of their Convention rights.

The Crime and Security Act 2010 required the Home Secretary to make arrangements for a National DNA Database Strategy Board to oversee the operation of the National DNA Database. However, the section was not brought into force and revised provision was made in Chapter I Protection of Freedoms Act 2010 (“PFA 2012”), again not yet in force. The PFA 2012 makes provision for the extended retention of DNA samples and profiles in cases involving national security.

Photographs

In S and Marper v UK (2009) it was stated that “the concept of private life includes elements relating to a person’s right to their image”, following the judgment in PG v United Kingdom (2008) ECtHR.

The taking of photographs of a person lawfully detained at a police station is authorised by s 64A PACE, with or without consent. The statute provides that photographs so taken may be used or disclosed to any person for any purpose related to the prevention or detection of crime and after being so used may be retained but not be used “except for a purpose so related”.

In R (RMC & FJ) v Commissioner of Police for the Metropolis and the Secretary of State for the Home Department (2012) EWHC the claimants were arrested on separate and unconnected charges. They were photographed and fingerprinted and DNA samples were taken. They argued successfully that the retention of the photographs after the decision was taken not to proceed against them was contrary to their respective Article 8 rights.

The PACE Code of Practice D deals with the photographing of detainees; the detail is not important here but it lays down certain standards to which the police must adhere. The Code stipulates at 4.6.1 that information originally recorded for police purposes should be considered for retention and deletion in accordance with criteria set out in guidance issued under the Code.

In RMC & FJ the court found that MoPI Guidance was unlawful but but made no order for the destruction of the photographs pending a redrafting of the Guidance.

John should be advised that the first issue is whether the police had reasonable suspicion in arresting him on the basis of the accusation by Mary and her family given his denial of wrongdoing. On balance the arrest was probably lawful (Buckley v Thames Valley Chief Officer (2009) EWCA). However, as John has not previously been arrested, charged or convicted of a recordable offence the police had no basis for retaining any of the data taken from him, including his photograph. In regard to the biometric data he will be able to obtain a declaration under Part 1 of the Protection of Freedoms Act 2012 that the retention of the data was unlawful. . In regard to the photograph he will have to invoke Article 8 of the European Convention on Human Rights. For the purposes of judicial review he has standing (and is a victim so far as concerns s7 HRA 1998), the matter is a public law matter (O’Reilly v Mackman (1983)) and the police are public law officers (R (Datafin plc) v Panel for takeovers and Mergers (1987)). The Chief Constable will be vicariously liable for the acts and omissions of his officers (s88 Police Act 1996).

Page 11 of 16 ..

Question 2 (a) The right of peaceful assembly is contained in Article 11 of the European Convention on Human Rights (“ECHR”) which is part of UK domestic law by virtue of the Human Rights Act 1998 (“HRA 1998”).

S16 Public Order Act 1986 (“POA 1996”) defines an assembly as a gathering of two or more people in a public place which is wholly or partly open to the air. By virtue of s 14 of the POA 1996 a senior police officer may impose conditions on any public assembly if he reasonably believes that it will result in serious public disorder, serious damage to property or serious disruption to the life of the community or if the purpose of the organisers is the intimidation of others. The police also have the powers introduced under the Criminal Justice and Public Order Act 1994 (POA 1986 ss 14A-14C) to ban trespassory assemblies on land to which the public does not normally have right of access.

As the police had no notice of the DCA’s intentions (and there is no duty to give the police notice of an assembly as distinct from a procession) no conditions had been imposed on the DCA’s gathering. Nor was the hotel an exclusion area in respect of which the police could issue instructions to the protesters.

The assault on the delegates amounted to riot under s1 POA 1986 as there was a common purpose and over 12 were involved. Moreover, it is reasonable to conclude that the violence used would have caused a person of reasonable firmness if present to have feared for his safety. However, this offence is rarely charged these days and the protesters would be charged with violent disorder (s2 POA 1986). Three engaged in the disorder will suffice and there is no requirement of common purpose. The missiles used were soft and unlikely to cause injury or criminal damage but it was disorder nevertheless, as a person of reasonable firmness might well have feared for his safety given the hooded headwear of the protesters.

The arrest of Reza and Soraya, with the other protesters, for violent disorder is understandable but the charge of terrorist activities is more problematic. Terrorism is defined in the s 1Terrorism Act 2000 (the TA 2000”) as action or the threat of action designed to influence a government or to intimidate the public or a section of it for the purpose of a advancing a political religious racial or ideological cause. The net is cast wide. Reasonable suspicion is required under s47A TA 2000 for an arrest and it does not matter if the suspicion later proves to be unfounded so long as it was reasonably held at the time (Secretary of State for the Home Department v BM (2011)).

Reza and Soraya may have been singled out because of their nationality, the nature of their university course and possibly their appearance, but those factors alone could not have formed a basis for reasonable suspicion. The comment of PC Edwards seems to indicate that Reza had been watched for some time. The sensitivity of a high profile summit may justify the extra caution. However, their presence at a previous demonstration and the nature of their course would seem to be an insufficient basis for their arrest under the TA 2000. Undoubtedly, the terrorism charge will have to be dropped but not that of violent disorder.

In any event, the words used to arrest Reza and Soraya were insufficient to constitute a lawful arrest (Edwards v DPP (1993)) and that deficiency can be cured only by subsequent action at the police station in the presence of a custody sergeant. Equally, the words used by Inspector Edwards when arresting the 40 protesters were equally deficient and, unless rectified at the police Page 12 of 16 station, all further police detention of them will be unlawful, though not the acts leading up to arrest (DPP v Hawkins (1988)).

(b) Soraya’s arrest was unlawful both under s47A TA 2000 and s28 PACE 1984. A person who believes that they have been arrested unlawfully is entitled to make an escape from police custody (Christie v Leachinsky (1947)). Having been arrested and detained by the police, the question is whether the police owed Soraya any duty of care to prevent her from injuring herself in escaping. In Vellino v Chief Constable of Greater Manchester Police (2001) CA the claimant had a string of convictions and suffered brain damage when he jumped from a first story window of his house to evade arrest. It was held that the police owed the claimant no duty to bar his progress through the window.

Thus, although it was accepted in Vellino that on arresting a person the police might owe some duty to the arrested person, it is likely that the court will find that the police owed Soraya no duty of care. (It is interesting that in Vellino Sir Steven Sedley as a member of a strong court, issued a powerful dissenting judgment.)

(c) So far as Mike is concerned the leading case is R (Brook) v Commissioner of Police of the Metropolis (2005) UKHL. In that case the court found (per Lord Bingham):

“The … duties pleaded are not duties which could even arguably be imposed on police officers charged in the public interest with the investigation of a very serious crime and the apprehension of those responsible… these are not duties which could be imposed on police officers without potentially undermining the officers' performance of their functions, effective performance of which serves an important public interest”.

Also relevant is the case of Van Colle v United Kingdom (2013) ECtHR where the court found that the police owed a witness no duty under Articles 2 and 8 ECHR.

On the basis of those judgments Mike will not succeed and should be advised accordingly.

Question 3 Religious Belief

Article 9 of the European Convention on Human Rights (ECHR) protects religious freedom. This includes freedom in public or private to manifest one’s religion or belief, in worship, teaching, practice and observance. This is subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The School is a public authority and by virtue of s3 HRA 1998 must do nothing that violates the citizen’s ECHR rights. There is no doubt that in excluding both girls from the School their freedom to manifest their religion under Article 9 had been limited. The question then arises whether there was any justification for Richard’s action for the purposes of Article 9(2).

The School governors were entitled to set a uniform policy and they had published it on the School’s website; in Convention terms it was accessible and clear. Farah had worn a kameeze, a type of head scarf, until puberty, without any restriction. In Regina (Shabina Begum) v Denbigh High School (2001) EWCA the school’s policy permitted Muslim girls to wear a kameeze, but not a jilbab. The Court of Appeal found: Page 13 of 16

(i) the school had unlawfully excluded the claimant from school;

(ii) the school had unlawfully denied her the right to manifest her religion; and

(iii) the school had unlawfully denied her access to suitable and appropriate education. However, in 2006, by a majority of one, the House of Lords overturned the decision of the Court of Appeal in the rather strange basis that to uphold the claim might put pressure on other girls at the school to adopt the jilbab.

Accordingly, Farah should be advised that her claim would not succeed In contrast, Anna’s case is similar to that of (2013) ECtHR where the right of a stewardess, who was a Coptic Christian employed by British Airways, to wear a necklace with a white gold cross was upheld. The airline had forbidden her to wear the necklace on the ground that it did not comply with its corporate image. Interestingly, the same court declined to uphold the claim of a nurse, Shirley Chaplin, who had been moved from a ward to a desk job on the basis that her wearing of a cross was a health hazard under Article 9(2).

Anna should be advised that she will succeed in her claim. The School’s policy may not extend to the wearing of religious symbols as distinct from religious dress, but if it does it can be viewed as unreasonable given the ratio of the judgment in Eweida. The school is a public law body R (Datafin plc) v Panel for Takeovers and Mergers (1987), the issue is a public law matter (O’Reilly v Mackman (1983)) and Anna has sufficient interest as “victim” in terms of s7 HRA 1998. So far as concerns John the evidence against him appears very flimsy. Any such proceedings should, in principle, be conducted according to the dictates of what is fair (R v Home Secretary ex p Doody (1994). Moreover, Article 6 ECHR requires the citizen to be given a fair hearing before an independent and impartial court or tribunal.

There is no general right to legal representation (R v Maze Prison Visitors ex parte Hone (1988)). In the case of R (G) v Governors of X School (2011) UKSC the Supreme Court found that the disciplinary proceedings affecting a teacher accused of sexual misconduct did not engage Article 6 ECHR and the claim was dismissed on that narrow ground, Lord Kerr dissenting.

In general terms, Richard’s claim could be more generally based on the denial of natural justice (Ridge v Baldwin (1964)). The proceedings before the disciplinary committee affect John’s livelihood as a teacher. Natural justice dictates that he should have very opportunity to be properly defended (R v Board of Visitors of Wormwood Scrubbs ex parte Anderson (1988)) and he can be confident that he would be granted legal representation. Moreover, he should be given every opportunity to present his case and five minutes seems to be too short (audi alteram partem rule). However, it appears that the obligation to hear both sides does not carry with it a right to cross-examination. John was given no reasons for the Committee’s decision. Increasingly the court considers that reasons should be given (Doody). Moreover, the social relationship of Fiona with Jane’s parents creates a situation of apparent bias (Hannam v Bradford Corporation (1970)). She should have stood down.

Should John be advised to apply for judicial review? The School is a public law body and John has standing. However, employment by a public authority does Page 14 of 16 not per se make it a public law matter in the absence of an issue engaging the public interest (East Berkshire Health Authority ex parte Walsh (1984)). The third required element for judicial review is absent. That is no doubt why the claimant in Governors of X School chose the ECHR route, albeit unsuccessfully.

Accordingly, John should be advised that on the basis of the judgment in X School he has no public law remedy.

Question 4 Privacy

(a) EU directives do not take immediate effect. The mode of implementation is a matter for the each Member State. A statutory direction issued by a minister under primary legislation could amount to action sufficient to secure compliance with an EU Directive. However, in this case the terms of the Secretary of State’s statutory direction are at odds with the EU Directive in that the former permits a greater measure of interception than is provided for in the EU Directive. Directives are binding on Members States “as to the result to be achieved” (TFEU Art 288) and EU Treaties take direct effect in the courts of Member States (Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECJ).

Although directives have only vertical rather than horizontal effect, a directive may be relied on by the citizen against the state regardless of the capacity in which the latter is acting so long as the subject matter of the directive is unconditional and sufficiently precise (Marshall v Southampton and South West Hampshire AHA (1986)). That would appear to be the case here and Magnus can rely on the EU Direction as against the Secretary of State’s statutory direction.

The ECHR has a special status in EU Law (International Transport Union Workers Federation v Viking Line ABP (2007) ECJ)) because of the fundamental rights it embodies. In principle, Magnus’s Article 8(1) right to respect for private and family life has been violated. Any interference with that right must under Article 8(2) be in accordance with law and necessary in a democratic society for a number of reasons, including public safety. The question is whether there is any justification under Article 8(2) for the violation in this case.

In Regina v Ashworth Special Hospital Authority and Anor ex parte N (2001) QB the court found that the Secretary of State had paid sufficient regard to providing therapeutic conditions for patients which were inextricably connected with security considerations. There was cogent evidence that, unless prevented, patients would abuse the use of telephones so as to give rise to security risks to themselves, other patients and staff. Random monitoring interfered with Article 8 no more than was necessary to achieve the permitted purpose.

The mischief to which Art 8 was directed was, inter alia, the accumulation of private information by a public authority. The risk of non-high risk patients abusing 90 per cent of their calls was regarded as acceptable and the risk capable of being dealt with by monitoring. The policy was within the margin of appreciation granted under Art 8 and not excessive having regard to the degree of manipulation possible by patients. The policy would achieve the legitimate security aim and was proportionate.

Magnus should be advised that he would succeed in an application to the court based on the wording of the EU Directive and this would not be affected by his inability to succeed on the basis of ECHR as there was no right conflicting with EU law.

Page 15 of 16 (b) The powers available under the Regulation of Investigatory Powers Act 2000 (“RIPA 2000”) and the Interception of Communications Code of Practice, if exercised, interfere in principle with the citizen’s Article 8(1) ECHR right to private and family life. The question is whether any violation of that right is justified under Article 8(2). Any interference with that right must under Article 8(2) be in accordance with law and necessary in a democratic society for a number of reasons, including the prevention of disorder or crime.

RIPA 2000, the Government argues, permits interference with a citizen’s communications in accordance with the legitimate aims of protecting national security, the economic well-being of the country and the prevention of crime.

The offences which permit interception are not set out by name. In Kennedy v United Kingdom (2010) ECtHR the court failed to rule on whether any of the claimant’s communications had been intercepted. It did say that while the claimant had not proved that any were intercepted, it could not be excluded that surveillance measures were applied against him and, on that basis, found that there had been Article 8(1) interference. It therefore looked to see whether there was any Article 8(2) justification in terms of the words “in accordance with the law” and “necessary”.

In general terms it ruled that signatory nations were not compelled to list exhaustively national security offences as those were by nature difficult to define in advance. However, the UK regime did specify the categories of persons who could be subject to an interception of their communications. Moreover, the court considered there were adequate safeguards in place in regard to the renewal or cancellation of interception warrants under the systematic supervision of the Secretary of State. In the UK the warrant was limited to one person or one set of premises only and data had to be destroyed when it was no longer required. The court found that that the relevant domestic provisions set out with sufficient clarity and precision the procedures which had to be followed and that they were proportionate. There appeared to be no shortcomings in the UK’s application of its surveillance regime and in any case its operation was overseen by an independent Interception of Communications Commissioner. However, the Court did not answer satisfactorily the question of whether any surveillance had been “necessary”.

The case highlights the difficulty the citizen encounters when it is difficult or impossible to confirm that surveillance has taken place. The interference with Article 8 rights does appear to be severe when the basis of the interception is concealed from the subject. Thus, while there has clearly been an interference with Fred’s Article 8(1) rights, that interference may well be justified as “according to law”. It may, however, be just possible to show that the interference was not “necessary” and that requirement has to be read conjunctively with the “according to law” requirement and not disjunctively.

Fred should be advised that while there is a chance that he might succeed in an application to the court it is but a chance.

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