Happy Christmas from the Investigatory Powers Bill – part 4
Happy Christmas From the Investigatory Powers Bill – Part 2
I posted a ‘shelfie’ for the ‘books for prisoners’ campaign last week – and was just looking at it and noticed that one of the books on the shelf was ‘The Best of Rumpole’. Rumpole was (and is) one of my heroes – so I took down the book, and started reading the introduction.
John Mortimer, who created and wrote the Rumpole stories, and who was himself a barrister, said some things in the introduction that reminded me why I find myself instinctively in tune with the criminal bar – though I am not a real lawyer at all. He wrote this introduction in 1992, but the words ring even more true today than they did back then. I’ll just repeat them as Mortimer wrote them:
“On the whole, lawyers are as unpopular as income tax collectors and traffic wardens. People think they tell lies and make a great deal of money. In fact, old criminal defenders like Rumpole don’t make much money and they stand up for our great legal principles – free speech, the idea that people are innocent until someone proves them guilty to the satisfaction of ten ordinary members of a jury, and the proposition that the police should not invent more of the evidence than is absolutely necessary. They protect the rights for which we have fought and struggled over the centuries, and do so at a time when jury trials and the rights of an accused person to silence are under constant attack from the government.”
That was back in 1992 – in 2014 the attacks from the government are far more intense, far more far-reaching, and sadly seem far more likely to succeed. We should be doing everything we can to defend the criminal bar from them, if we believe in any of these things. I don’t know about the rest of you, but I do.
[Guest post by @Super__Cyan]
Would the Home Office dare do this to the Man of Steel? After all, he is an illegal alien. Maybe the Home Office would be more inclined if he looked like this?
(For those who do not know, this is Superman from Earth-Tangent)
This is just to point out the growing concern that officials of the Home Office are conducting ‘racist and intimidatory profiling’ see also this storify by @anyapalmer. This is not to discuss stop and search powers, more on general stop and search powers by yours truly can be seen here. Two things are worth some attention, first this image from the @ukhomeoffice twitter account:
And this page on the Home Office’s site which has the interesting headline of ‘Immigration offenders arrested in Home Office operations.’
Are there any human rights issues with these? Possibly, the image of the person being taken away could raise issues of privacy, and as we know that same old Article 8 of the European Convention of Human Rights might be engaged where it stipulates that:
Private life, the European Court of Human Rights (ECtHR) in Von Hannover v Germany 59320/00  ECHR 294 has pointed out that this includes a person’s picture (para 50). Let’s just assume for the sake of this post that the Home Office officials have lawful authority for taking those pictures, because if they didn’t that would be illegal. So if the officials have lawful authority, what then? Is the Article 8 issue now exhausted?
Not quite, because the subsequent use of those pictures can still leave the Article 8 issue live. This can be seen in Peck v United Kingdom 44647/98  ECHR 44 here the applicant was filmed by a CCTV attempting to commit suicide by cameras operated by Brentwood Borough Council in a public street. A few months later, the Council issued two photographs taken from the CCTV footage for publication in an article about the preventative benefits of CCTV. The applicant’s face was not specifically masked. Extracts from the CCTV footage were also shown on regional television in which the applicant’s face had been masked at the Council’s request.
The ECtHR pointed out that the Independent Television Commission considered the masking of the applicant was not adequate because the applicant’s distinctive features (para 16). Many of the applicants friends and family who saw the ‘Crime Beat’ programme recognised the applicant (para 21) including people who knew him, like colleagues (para 54). So the important questions would be, from that image, could the individual be identified? Is the obfuscation adequate? Because on the on the @ukhomeoffice ‘Photos and videos’ page there is an image of an official whose obfuscation is telling.
The ECtHR reaffirmed the position that interaction even within the public context falls within the ambit of Article 8 (para 57). Also reiterating that using photographic equipment that records in a permanent nature gives rise to considerations regarding interference with Article 8 (para 59). But here the applicant was not arguing against the use of CCTV footage but the that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference (para 60). The ECtHR concluded that the Council’s disclosure constituted a serious interference with the applicant’s Article 8 rights (para 61). This could be the case also for the present image.
After determining whether this was in accordance with the law and pursued a legitimate aim (which was satisfied para 64-67) the ECtHR also pointed out that ‘the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime’ (para 79). Drawing analogies with Peck and the image tweeted by the Home Office is that the person is arrested on ‘suspicion’ so there are some similarities. The ECtHR criticised the Council for not taking the utmost care in ensuring the media masked those images and stated:
In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant’s consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case (para 85).
For reasons such as these the ECtHR found the United Kingdom in violation of Article 8. This is not intended to suggest that this would be the likely outcome regarding the present images the Home Office has tweeted, but none the less great caution should be taken when releasing images of individuals to the public.
There is another issue that may be applicable here, and again it’s something to do with Europe, and something to do with human rights, a recipe for disaster! This time Article 6(2) of the ECHR may be relevant which states that:
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
This disallows premature declarations of guilt by public officials. In Allenet de Ribemont v. France 15175/89  ECHR 112 emphasised that not being charged but being arrested falls within the ambit of being “charged with a criminal offence” (para 37). Kouzmin v. Russia (link in French) points out that public official does not need to be an already elected representative or employee of the public authorities at the material time. It may include persons of recognised public standing, from having held a public position of importance in the past or from running for elected office (para 59-69). It seems pretty sure the Home Office’s twitter account would satisfy this as it is a public authority (para 49).
The ECtHR in Ismoilov and Others v Russia 2947/06  ECHR 348 stressed that:
A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court emphasises the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence.(para 166)
So essentially the Strasbourg Court is saying that poor choice of words could violate Article 6(2). The hashtag used in the tweet with the images states ‘suspected #immigrationOFFENDER.’ Offenders are those that have been convicted of an offence, a sex offender is someone who has been found guilty of a sexual offence, see generally F & Anor, R (on the application of) v Secretary of State for the Home Department  UKSC 17. Obviously the word suspected demonstrates the suspicion the individual is under, but adding ‘offender’ in the hashtag is certainly poor choice of words, it may have been more appropriate to tweet ‘suspected of #immigrationOFFENCES.’ As pointed out the headline on the website does not, however help the case for the Home Office as it clearly states of ‘Immigration offenders arrested in Home Office operations.’ Only if one reads the body of the text will they discern that those arrested are suspected of an offence, this is sadly only after the website states ‘immigration offenders’ twice before even mentioning ‘suspected.’
Calling someone a ‘bribe-taker’ was enough to violate Article 6(2) in the case of Butkevičius v Lithuania so it is not that farfetched to suggest ‘immigration offender’ may as the ECtHR said ‘encourage the public to believe him guilty and prejudged the assessment of the facts by the competent judicial authority’ (para 53). Similar sentiments by Richard A. Edwards and Associate Professor @NoelleQuenivet regarding the presumption of innocence can be found here and an excellent post from the aspect of data protection here by @bainesy1969. I suppose this may all hinge on whether the individual is identifiable, but the ECtHR in Butkevičius v Lithuania noted that:
‘[Article 6(2)] will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law’ (para 49)
This implies a violation is possible irrespective identification. Regardless, the Home Office could not have trolled harder, as at the bottom of its site it asks:
Perhaps the better question would be ‘Is there anything right with this page?’
We at the UEA, would like to let it be known that we offer the perfect law course for any women who, as Boris Johnson suggests, is coming to university primarily to catch and marry Mr Right.
There are many elements to that law degree, each of which can help you in this task – and help you to deal with the many problems that can occur in the process. Each has a part to play – and don’t forget that it’s not just about catching your man!
Tort Law – Whom to sue when he lets you down for misrepresentation
Contract Law – How to keep him for life
Criminal Law – What to do if Mr ‘Right’ takes a ‘playful tiff’ too far
Family Law – How to ditch him when he turns out to be Mr Wrong
Constitutional Law – Crucial, if you’re lucky enough to snare someone in line for the throne
EU law – What happens if Mr Right is a johnny foreigner?
Law and medicine – The ethical issues of tending to Mr Right’s wounded pride
Trust Law – How to turn all those empty promises into real money
Company Law – Understanding what Mr Right does all day in the City
Commercial Law – What’s yours is his, what’s his stays his
Land Law – How to sell your flat when it’s time to move in with Mr Right
Competition Law – What to do when you’re two-timed, and how to deal with unfair competition.
Employment law – Knowing what to do when your nanny or housecleaner calls in sick
Internet Law – When and how you can find out what he’s doing online
Media Law – How to get that key injunction when the paparazzi catch Mr Right out
It’s everything you need – who could possibly want more? It’s not as though women want education for any other reason.
The course texts will include regular subscriptions to Vogue, Cosmopolitan and Good Housekeeping, as well as ‘Men are from Mars, Women are from Venus’.
*Errr… in case you didn’t realise, this is a joke….
**This post inspired by the excellent David Mead, with contributions from others in the Law School at the UEA.
One of the immediate reactions to the last minute deal over the implementation of the Leveson recommendations was that it would hit bloggers and tweeters very hard. I’m not sure that’s really true – and will set out here why. I should say these are just a few first thoughts – it will be quite some time before everything becomes clear, partly because the Royal Charter itself needs careful and detailed analysis and partly because it’s not just the Charter itself that matters, but the documents and guidelines that follow. The Royal Charter is only part of the story. It sets out terms for a ‘recognition panel’ that ‘recognises’ regulators – it doesn’t set up the regulators themselves. As Cameron and others have been at pains to point out, the idea is that the ‘press’ sets up the regulator(s) itself. We have yet to see what form any regulator the press sets up will take. It has to be good enough for the recognition panel to accept – that’s the key…
So what about bloggers?
Attention has been focused on Schedule 4 of the Royal Charter (which can be found here), which sets out two definitions:
“relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:
i. a newspaper or magazine containing news-related material, or
ii. a website containing news-related material (whether or not related to a newspaper or magazine);”
“news-related material” means:
i. news or information about current affairs;
ii. opinion about matters relating to the news or current affairs; or
iii. gossip about celebrities, other public figures or other persons in the news.”
So, according to those definitions, many – perhaps most – bloggers would count as ‘relevant publishers’. Certainly I would say that my own blog – this one – would fit the definition. This seems to have caused many people to panic – but you need to look a little further: in particular, what does it mean to say that I’m a ‘relevant publisher’?
On a quick review of the Royal Charter, all it appears to mean at present is whether I would be eligible to part of the ‘recognition’ panel, or employed by that recognition panel – part of the rules intended to keep the recognition panel independent of the press, one of the key parts of the Leveson recommendations.
It may of course mean more than that in time – but we don’t know. We need to see more – the real details of how this will work have yet to emerge beyond the initial Royal Charter Draft. The fact that the definitions are there doesn’t mean much – though it could be a pointer as to the direction that the new regulatory regime is headed. It may indeed be that the new scheme is intended to ‘regulate the web’ but it doesn’t do so yet.
What’s the difference between a newspaper’s website and a blog?
That’s the big question that has yet to be answered. There’s a clear difference between the Guardian Online and my little blog – but where does things like Conservative Home, Liberal Conspiracy and Guido’s Order Order fit into the spectrum? There were even rumours last year that the Guardian was going to abandon its ‘real’ paper and focus only on its online version – they were quickly scotched, but they were believable enough for a lot of people to accept them. If they had happened, should the Guardian Online have been regulated as though it were a newspaper?
If the press is to be regulated at all – and the consensus between the political parties that lay behind yesterday’s deal suggests that non-regulation is not an option – then online newspapers that are effectively the same as ‘paper’ newspapers should have to be regulated too. Small blogs shouldn’t – and Cameron and others have been quick to say that social media won’t be covered, though quite how they bring that into action has yet to be seen. The difficulty lies in the greyer areas, and that’s where we have to be vigilant – the devil will be in the detail.
What about those huge fines?
The Charter actually says the body should have “…the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000)…”
Appropriate and proportionate sanctions for a non-profit blogger would therefore be likely to be qualitative – remedies like proper and prominent apologies come to mind. The fining capability – the £1,000,000 that has made its way into press headlines – may mean something to big newspapers, but it’s effectively irrelevant to bloggers. We don’t have ‘turnovers’ of any significance – and big fines would (in general) be inappropriate and disproportionate.
The real key is the idea of ‘exemplary damages’, introduced by the Crime and Courts Bill. That, however, introduces a different definition of ‘relevant publisher’. It says:
“(1) In sections (Awards of exemplary damages) to (Awards of costs), “relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material—
(a) which is written by different authors, and
(b) which is to any extent subject to editorial control.”
That means that individual bloggers are automatically exempt – but leaves the bigger bloggers like Conservative Home, Liberal Conspiracy and Guido’s Order Order subject to possible exemplary damages.
Personally I don’t think the risk is at all high – exemplary damages are highly unlikely to apply except in the most extreme of circumstances, but it is still something to be alert to.
…and anyway, blogs are already subject to the law
This is a key point that many seem to miss. This regulatory framework isn’t acting in a vacuum. Bloggers and tweeters are already subject to the law – to defamation law, to privacy law, to copyright law, to public order law, to laws concerning hate speech, to obscenity law. This framework would do nothing to change that. Those laws are complex and variably effective – and variably enforced.
Personally that’s what I’d be concerned about, much more than Leveson. The illiberality of the use of public order and related law on tweeters and bloggers is something that, for me, is far more dangerous a trend than anything this Royal Charter could bring about.
These are just some first thoughts – there’s a long way to go with this. Monday wasn’t the last word in this. Far from it – we need to watch very carefully and lobby very strongly if things seem to be moving the wrong way, but we shouldn’t be distracted and forced into a panic over anything at this stage.
Personally, I wonder whether those who are against the regulation for their own reasons are just trying to scare bloggers and tweeters, and enlist them on their side. Not me. Not yet.