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House of Lords inquiry into social media offences – what the report really says

Administrator 1 : July 29, 2014 10:10 am : Blog, Criminal, Headline

By Dan Bunting

“Fuck off and die you worthless piece of crap” “you are a silly cunt … your mothers a wog and your dad is a rapist! Bonjour you scruffy northern cunt!”. Not my words, but what is perhaps one of the more surprising opening lines to find in a House of Lords Select Committee Report.

The report is born out of a widely held belief that the law on policing what should be permitted on social media, and determining between the morally unacceptable and the criminal, is woefully inadequate in the current age.

The report is “for information purposes only” – it is not setting out to make recommendations to Parliament (and it is unlikely to be taken up). It only relates to England and Wales, and is good reading for practitioners to give background to the issue.

The conclusion is a perhaps surprising one – the current law “is generally appropriate for the prosecution of offences committed using the social media”. This would certainly be against what most commentators would think, but may well shape the debate over the next year or so (in Parliament at least).

Summary of conclusions:

  • No need for a new criminal offence relating to social media crime, equally…
  • There is no need to revise the current law to prevent overlap
  • Section 127 Magistrates’ Court Act 1980 to allow 12 months to prosecute rather than six
  • Statistics should be compiled as to the extent of “online offending”
  • The CPS Guidelines on prosecuting social media cases takes appropriate account of Art 10
  • With the exception of “revenge porn” (prosecuted under Malicious Communications Act 1988) there is no need for an increase in sentencing powers.
  • It is appropriate to require website operators to establish the identity of those who open accounts with them.

Comment

A few points of note come out from the report:

There is an interesting discussion as to the applicability of Joint Enterprise in this area of law. This is potentially a matter of concern – it is easy to see how this will lead to criminalisation of people over a wide geographical area who do not know each other.

Assuming that the Malicious Communications Act 1988 offence is made either way (as is currently proposed in the Criminal Justice and Courts Bill) it will be interesting to see how many people are prosecuted under that compared to the Communications Act 2003. I have been suggesting for a while that an appropriate way of drawing the balance under Art 10 is to make the offences either way as a check on the CPS only bringing cases that they properly should. Whether this change sees a drop in the number of prosecutions under the 1988 Act is one to watch.

In relation to the availability of civil injunctions for privacy (as a way to crack down on “revenge porn”), the committee noted “We are concerned that the latter remedy is available only to those who can afford access to the High Court. It would be desirable to provide a proportionately more accessible route to judicial intervention” (para 44). This raises the question of whether the criminal law should fill the gaps left by the absence of legal aid. Also, there is then a danger of a two-tier justice depending on how rich the complainant is.

Conclusion

The question of prosecuting “social media” offences is a very difficult one. The last ten years has seen profound changes in the way we interact. The fact that you can read this just seconds after it is written on a computer is one example. The availability of interaction is huge – Twitter and Facebook were not in the mind of the Parliamentarians drafting the Communications Act 2003.

It is hard to disagree that the current criminal law is capable of covering the internet. Where many would take issue is with the belief that the current position is working. There is a hotch potch of legal measures that can cover errant tweeters, but none of the legislation was designed with social media of any kind in mind, let alone the major sites of today.

The CPS policy is one that appears robust and sensible. The problem is not with the theory of it, but with its implementation. Looking at many of the recent high-profile social media prosecutions, it is hard to see how they are properly applying their own policy. Whether this perception is right or not, it needs to be monitored to see.

The Committee does suggest, faintly perhaps, that Parliament may want to consider stepping in and giving further guidance. This is only to be welcomed. The problem with this report is that it is hard to see how many can support the conclusion that all is (sort of) well with the current system. It has all the appearance on the outside of being an unprincipled mess, with prosecutors trying to do their best, but with outdated tools. This is an area that desperately requires the attention of the Law Commission, or similar body, pronto.

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Scottish Referendum – implications for Europe and international relationships

Administrator 1 : July 28, 2014 9:28 am : Blog, Featured, Legal Profession & Courts

How could a “yes” vote affect Scotland’s position within the EU?

This is a controversial point. Scotland is not currently a member of the EU in its own right. It would therefore have to become a member. There is some disagreement as to how this might come about.

Some have argued that other EU members (Spain being mentioned most often) will oppose Scottish membership on the basis that it would encourage Catalonian separatists. However, there are a number of reasons why this is unlikely, the two main reasons being Scotland’s importance to Europe and the fact that Scottish membership will not set a precedent.

Scotland represents a significant part of EU territory, including, in particular, its northwest maritime boundary. Scotland is also Europe’s largest producer of oil. It has 25% of Europe’s potential tidal power, and 25% of its offshore wind resource potential. It also has important fishing grounds for EU fishermen, including the Spanish fleet. Many EU citizens enjoy rights of residence in Scotland and Scottish funding to attend Scottish universities. There will be no appetite for bringing these rights to an abrupt halt upon independence.

Scottish independence will not be a precedent for other EU regions. The referendum in Scotland is being carried out wholly in accordance with the UK constitution, and with the agreement of the UK government. The UK government has made it clear that it will respect the outcome of the referendum. This is to be contrasted with the position in Spain and other EU nations where separatist movements are deemed to be unconstitutional.

Assuming that membership can be achieved, Scotland will then be a member in its own right, with full voting rights on the Council. Additional MEPs will be allocated to Scotland to reflect the fact that it is a member rather than a region.

There has been some disagreement as to whether Scotland would be able to keep the UK’s EU concessions, such as the Euro and Schengen opt-outs and the rebate. It is likely that Scotland will get an opt-out from Schengen like Ireland so that it can be part of the Common Travel Area. As regards the Euro, in practical terms it’s not possible to force Scotland to join since this would involve a period of membership in the exchange rate mechanism for a Scottish currency (which doesn’t exist and isn’t proposed). The rebate is a more difficult question, but it should be kept in mind that it is calculated in part on the basis of Scotland’s contribution to the UK economy.

An important point is whether Scotland can achieve a seamless transition to EU membership. One school of thought is that the EU will regard Scottish independence as an internal enlargement and treat it in a pragmatic way, dealing with Scotland’s membership between the date of the referendum and the date of independence. The other school of thought is that Scotland cannot apply for EU membership until it becomes independent, and that therefore it will necessarily be out with the EU for a period of time, albeit perhaps governed by an interim treaty preserving the relationship.

Much of the debate is influenced by partisanship, but neutral observers like former ECJ Judge Sir David Edward QC, Professor Sionaidh Douglas Scott of Oxford and Honorary EU Director-General, Graham Avery have argued that a pragmatic solution will be found for Scotland’s continuing membership, and that the EU is very unlikely to permit Scotland to leave the EU, even on a temporary basis, if it can be avoided.

What could this mean for the rest of the UK?

The UK government’s position is that it will be the continuator state following Scottish independence, and will continue its position as the member of the EU.

Regardless of whether Scotland is also a member of the EU, it will be necessary to consider the terms of the remainder UK’s (rUK’s) ongoing membership. Given that rUK’s population will still be one of the larger populations in the EU, it is unlikely that the number of votes (29) that it enjoys in respect of qualified majority voting on the Council of the EU will change. Scotland could perhaps expect to get seven votes. Therefore, where Scotland and rUK have a common position on an issue, they will, combined, enjoy greater clout than the UK does on its own at the moment. But where Scotland takes a contrary position, the rUK position will be diluted by the increase in total votes against. The same principles apply to the new “double majority” system of voting at the Council.

Scottish independence would have an impact upon the number of MEPs allocated to the UK. There may also be an impact on the UK rebate since the UK’s contribution to EU funds will diminish.

In the wider context, it has been suggested that Scottish independence might reduce UK impact on the world stage, and may for example jeopardise the UK’s permanent seat on the UN Security Council.

This may depend on the UK’s approach to defence spending following Scottish independence. UK defence spending will become proportionately more expensive without Scotland’s contribution. There are also serious questions about where Trident submarines (and any replacement) might be based.

Would Scotland automatically be bound by, and benefit from, international treaties after independence?

In general terms, no. However, there are technical exceptions to that. For example, the European Convention on Human Rights is part of the law of Scotland and will continue to be so.

There are a variety of treaties that an independent Scotland will wish to sign up to. In respect of some of those treaties, all that will be required is a signature. For others, such as NATO, negotiation will be required to achieve entry.

The EU treaty is more complicated for the reasons set out above. Membership would not be automatic and would need to be negotiated. However, there will be strong pressure to keep Scotland within the EU for practical reasons, and it is reasonable to expect that the EU will take steps to ensure seamless membership for Scotland by internal enlargement through treaty amendment.

The Vienna Convention on the Succession of States in Respect of Treaties may have a bearing on certain treaty-based organisations. The UK is not a signatory to this convention, but the principles may be applied by treaty organisations as customary law. The effect of art 34 of the Vienna Convention would be that Scotland as a successor state would continue to be bound by treaties that were in force in respect of the UK. In practice, each treaty organisation will approach the question differently according to its own constitution.

Will any of the UK’s international law rights and obligations be affected?

The UK government has declared its intention that rUK will be the continuator state to the UK after Scottish independence, adopting the existing UK’s rights and obligations. While there are arguments in UK constitutional law as to why the correct view is that two new countries emerge and the UK will simply cease to exist, the politico legal reality is that rUK is likely to be accepted as the continuator of the UK.

Accordingly, it is unlikely that the UK’s international law rights and obligations will be affected in a fundamental way. However, rights and obligations which are determined or weighted by population size, GDP, balance of trade etc, may be affected by Scottish independence.

From an international law perspective how could the delineation of maritime boundaries be affected?

Commonly, maritime boundaries are established using the “equidistance”/“median line” principle. This is the method that has been used since 1999 to delineate responsibility of fisheries in the North Sea. There are exceptions to this general principle, where for example there is a large bay or inlet (see for example the recent decision on the Bay of Bengal). In those circumstances, the median line may be calculated with reference to a base line across the inlet. There is therefore some room for disagreement, and the boundary will form part of the overall negotiations.

What could all this mean for lawyers and their clients?

The impact of Scottish independence for lawyers on both sides of the border will be significant. It is not yet possible to know the extent of differences in regulation in an independent Scotland. The Scottish Government paints a picture of a smooth transition with little change in day-to-day business, and cooperation across regulators on all fronts. The UK government paints a picture of disruption and disaster. Both, of course, are trying to persuade Scots to vote in one direction or the other.

Different legal regimes already apply in Scotland and the rest of the UK, so on one view this is nothing new. Where change comes in it is likely to be gradual and manageable as it is in no one’s interests to disrupt business unnecessarily.

Some lawyers north and south of the border have described Scottish independence as a “bonanza” for legal fees. Certainly the creation of a new country will involve a good deal of paperwork. However, from a client’s point of view, only those who feel the need to set up an additional headquarters in Scotland are likely to incur any significant additional costs.

For those clients used to dealing in multiple jurisdictions, Scottish independence does not offer a new challenge.

For lawyers in Scotland, Scottish independence will change the legal landscape dramatically, transforming a regional legal market into an international market as reserved powers and international government return to Scotland. For lawyers in the rest of the UK, most will not notice any difference at all, but some may consider that an independent Scotland offers new opportunities.

Any other thoughts?

Scottish independence will bring significant change to the UK, but in the context of lawyers and their clients, it’s important to remember that Scotland had its own legal system before the union, and that there has never been a “perfected” union in the sense of uniformity of law. However, company, contract, and insolvency laws are very similar if not identical in Scotland and the rest of the UK, and that’s unlikely to change soon. There is good sense in having uniform laws of commerce across the world, not just the UK, and divergence for the sake of being different is unlikely.

The pattern of convergence of Scots and English law reflecting 300 years of a common Parliament and Supreme Court was slowed down if not wholly reversed by the creation of a Scottish Parliament with legislative powers in 1999. Therefore, from a legal perspective, the move from a devolved Scottish Parliament to one with sovereign powers will be evolutionary, not revolutionary.

 

Brandon Malone, partner with McClure Naismith (Interviewed by Helen Redding).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Where does Lindsay Sandiford’s appeal leave the funding of lawyers abroad?

Administrator 1 : July 21, 2014 1:42 pm : Blog, Criminal, Featured, Human Rights

Rex Features
What is the background to this case?

The appellant is a British national who was convicted of drug trafficking offences in Indonesia and sentenced to death. She is currently awaiting execution in prison in Bali. The respondent claimed to have a strict “bright line” policy never to provide legal funding in criminal proceedings abroad, even where the death penalty may apply. The Supreme Court granted permission to appeal from the judgment of the Court of Appeal only on the issue of whether the respondent’s policy was irrational or incompatible with the European Convention on Human Rights (ECHR).

The Supreme Court unanimously dismissed the appeal. The appellant did not come within the jurisdiction of the UK for the purposes of the ECHR, art 1. The responsibility for ensuring a fair trial lay with the Indonesian authorities. As the Secretary of State’s power to provide assistance to citizens facing capital charges abroad derives not from statute but from prerogative powers, the rule against fettering discretion did not apply and so a blanket policy could not be said to be ipso facto unlawful.

Nevertheless, the court urgently called on the Secretary of State to review the application of the policy to the appellant’s case in light of information before the court calling into question as to the fairness of the proceedings in Indonesia. In particular, the court said that transcripts of the judgments against Mrs Sandiford in Indonesia “make very disturbing reading”:

“[The judgments] raise the most serious issues as to the functioning of the local judicial system… the local courts appeared to have ignored the substantial mitigating factors in her case, including her age and mental problems, her lack of any previous record, her co-operation with the police, and not least the remarkable disparity of her sentence with those of the members of the syndicate whom she helped to bring to justice.”

The court noted that, despite the Foreign Secretary’s purported policy never to provide funding, in fact the respondent considered whether to depart from that policy in Mrs Sandiford’s case. Logic and consistency would require him to review the policy and decide whether to provide Mrs Sandiford legal funding in light of this information about the Indonesian court proceedings.

What issues does this case raise? On what grounds is the appellant pleading?

The case challenged the policy of the Foreign & Commonwealth Office (FCO) avowedly never to provide any form of direct financial assistance to British national facing criminal trial abroad, and to make no exceptions for this policy even in death penalty cases – notwithstanding the FCO policy to oppose and campaign against the imposition of the death penalty generally and to seek the upholding of the EU minimum standards in death penalty cases which include provisions on the fairness of capital trials and equality of arms in representation.

What was the basis of decision on blanket policy?

The UK Supreme Court gave limited permission to appeal from the Court of Appeal on grounds only of rationality of the policy and its ECHR compatibility. The Supreme Court refused to allow argument on the issue of whether the appellant could rely upon the EU Charter of Fundamental Rights (it having been argued in the courts below that the issue of exercising or refusing to establish declining jurisdiction over own nationals accused of drug trafficking offences was a matter which fell within the ambit of an EU Framework Decision under the Justice and Home Affairs pillar and so was within the four corners of EU law).

What did the court decide?

The court decided that as a matter of law it was open to the FCO to have a bright line/blanket policy never to provide funding since the FCO was not acting under statutory powers (in reference to which it could not fetter its discretion) but was acting under the Crown’s ordinary or prerogative powers which were not constrained. The appellant had argued there was a constraint on the Crown’s ordinary or prerogative power by reference to fundamental rights recognised at common law. The court did not advert to this line of argument in its decision. Instead it alluded to common law fundamental rights only in the context of a possible rationality challenge as perhaps lowering the bar in principle from high Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corpn). They found that the rationality standard applicable in this case had not however been breached as the FCO said that in fact it would look at exceptional cases and consider whether or not to depart from its published policy never to give funding for a fair trial abroad even in capital cases.

What are Mrs Sandiford’s available next steps?

I understand that in the light of the Supreme Court’s comments on the Indonesian court process ruling the FCO is being urgently called upon the review the decision not to fund Mrs Sandiford. She has a last chance to seek judicial review before the Indonesian Supreme Court of the decision to impose the death penalty but she still needs funding for this. A local and suitably experienced Indonesian lawyer has been found by Reprieve, the charity who have been giving non-financial support and assistance to Mrs Sandiford throughout her trial and appeal.

What are the implications of the decision for lawyers, their clients and the government?

There are relatively few British nationals facing the death penalty abroad. The numbers given by the FCO are between 50 and 60. Not all of these need or want legal assistance from the FCO as they are in countries/states where public defenders are appointed or they have the money to fund their own representation.

Arguably, if another case came along with similarly compelling facts, the same logic and consistency would require the FCO to consider granting funding in that case.

How does this fit in with other developments in this area?

The case will probably have greater political rather than legal repercussions. The evidence presented to the court was that a number of other European and non-European countries provide for funding to their national facing trial abroad in death penalty cases. Germany and Spain stand out on this, as does Mexico (where a large number of its nationals face the death penalty for drug-trafficking in the States). The funding of lawyers abroad has been found to be one the most effective ways of avoiding the imposition of the death penalty.

Aiden O’Neill QC of Matrix Chambers (Interviewed by Dave Thorley).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Mental Capacity Bill: lessons from Northern Ireland

Administrator 1 : July 21, 2014 12:41 pm : Blog, Featured, Human Rights

deprivation of liberty safeguards DOLSREX/Denis Closon
By Alexander Ruck Keene

Almost unnoticed in England, the first part of a new draft Mental Capacity Bill has recently been published in Northern Ireland (out for consultation until 2 September 2014), along with the proposals for those subject to the criminal justice system. The civil provisions in the draft Bill – which applies to those over the age of 16, appear at first blush superficially similar to the Mental Capacity Act 2005 (MCA 2005). Terms such as “capacity” and “best interests” appear, and the tests for the assessment of both mirror the tests set down in the MCA 2005.

But this superficial similarity hides its truly radical nature:

  • There will – if the Bill is passed during the current Assembly’s mandate – be no replacement for the Mental Health Order 1986 (NI) in respect of those aged 16 and over (it will survive in respect of those aged 15 and below pending further consideration of how their position is best to be approached);
  • unlike in England, therefore, there will be no provision for the compulsory detention and treatment of those with mental disorders who have capacity to take the material decisions but refuse;
  • the admission and treatment of those with a mental disorder will, if they lack capacity to take the relevant decisions, be on precisely the same best interest basis as all other forms of decision-making for those without capacity.

If the civil provisions are enacted in substantially the same form as those issued for consultation – and if they are accompanied by a proper implementation programme – they will represent a truly ground-breaking shift in the approach to the care and treatment of those with mental disorders in Northern Ireland who will – in essence – disappear as a separate class of individual.

The civil provisions are also of interest for the variations that they introduce when mirroring clauses from the MCA – the added provisions regarding support to take decisions and the approach to deprivation of liberty repay particularly careful scrutiny for legislators, and are discussed in more detail here.

The consultation document also provides an indication of the direction of travel in relation to the application of the principles in the criminal justice system. It is clear that the Department of Justice is making a sustained attempt to introduce a fully capacity-based approach to care, treatment and person welfare in respect of persons subject to the criminal justice system. This will have effect at a number of stages, of which the most significant is perhaps making court powers to impose particular healthcare disposals on offenders at remand, sentencing or following a finding of unfitness to plead (a test which will, itself, be revised to be based upon capacity) contingent on that individual’s capacity (and – where they lack capacity – upon their best interests). It is clear from the consultation document that these proposals are predicated on a radically different model of the treatment of those with mental disorders at all stages of their involvement with the criminal justice system. It is also clear that the formulation of the precise wording of the draft legislation to carry these principles into effect will be – to put it mildly – sensitive.

I suggest that we will need to watch very carefully from this side of the Irish Sea to see how the consultation and legislative process unfolds – and in particular to see how the flesh begins to be put upon the bones of the draft primary legislation. As so often, we have a great deal to learn in England by looking over the borders to see how the other jurisdictions in the UK (and, indeed in close proximity – in the shape of the Republic of Ireland) approach the question of how to balance autonomy and protection. The model set down in the draft Northern Irish Bill is one that we should be paying particular attention to, not least as the UK begins the process of engagement with the Committee on the Rights of Persons with Disabilities in the run up to the consideration of the UK by that Committee in the course of 2015, as part of which the Bill will no doubt feature heavily.

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Assisted Dying Bill: unsatisfactory

Administrator 1 : July 21, 2014 9:48 am : Blog, Featured, Human Rights

By Khawar Qureshi and Catriona Nicol

Introduction

On 18 July 2014, the House of Lords debated the Assisted Dying Bill which is described as “A Bill to enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes.”

The draft Bill legalises physician-assisted dying – provided that certain conditions are met, terminally ill individuals can obtain a prescription from a doctor which they can then administer themselves to bring about their own death.[1] However, the proposed change in the law has been met with criticism by many, both as a matter of principle and practice.

This article considers the history and provisions of the Assisted Dying Bill, opposition to the Bill, and domestic and European jurisprudence.

Assisted Dying Bill

Background

The Assisted Dying Bill is the fifth bill dealing with assisted dying to come before Parliament in ten years.[2] Previous bills (three introduced by Lord Joffe between 2004 and 2006) and one introduced by Lord Falconer in 2013. In 2006, Lord Joffe’s Assisted Dying for the Terminally Ill Bill was defeated following debate (by 148 votes to 100).[3]

Commission on Assisted Dying and a new draft Bill

On 5 January 2012, the Commission on Assisted Dying (the “Commission”) published its Final Report.  The Commission, launched in 2010, was set up to consider whether the current legal and policy approach to assisted dying in England and Wales was fit for purpose, and a potential framework for England and Wales. In the Final Report, the Commission concluded that the current legal status of assisted suicide was inadequate and incoherent, and set out a proposed legal framework (including eligibility criteria and potential safeguards).

Subsequently, in 2012, the All Party Parliamentary Group on Choice at the End of Life (of which Lord Falconer was not a member) prepared a draft Assisted Dying Bill based on the Commission’s Report.

In 2013, Lord Falconer submitted a Private Member’s Bill in the House of Lords which was in substantially similar terms. After the Assisted Dying Bill ran out of time in the Parliamentary session in 2013, Lord Falconer reintroduced the Bill in identical terms in 2014, with it receiving its first reading in the House of Lords on 5 June 2014 (three weeks before the Supreme Court released its decision in R (Nicklinson) v Ministry of Justice, discussed further below).

Summary of the Bill

The Assisted Dying Bill 2014 consists of 13 sections and one schedule.[4]

Section 1 provides that “a person who is terminally ill may request and lawfully be provided with assistance to end his or her own life only if the person—

(a) has a clear and settled intention to end his or her own life;

(b) has made a declaration to that effect in accordance with section 3; and

(c) on the day the declaration is made—

(i) is aged 18 or over; and

(ii) has been ordinarily resident in England and Wales for not less than one year.”[5]

The request must be made by the individual – no other person, including the patient’s doctor or relative, would be able to initiate the process of requesting an assisted death.[6]

Taking each of those points in turn:

  • A person will be said to be “terminally ill” where that person has been diagnosed by a registered medical practitioner as having an inevitably progressive condition which cannot be reversed by treatment; and as a consequence of that terminal illness, is reasonably expected to die within six months.[7] Accordingly, the Bill in its current form would not apply to persons suffering from degenerative or progressive conditions (such as motor neuron disease); “locked-in syndrome”; or those who have been paralysed unless life expectancy is less than six months.[8]
  • The declaration must be made in the form set out in the Schedule to the Bill. That declaration must be signed by a witness (who must not be a relative or directly involved in the person’s care or treatment). [9]
  • The declaration must also be signed by two medical practitioners (who must not be related or working in the same practice) who must conclude, working independently, that the individual is terminally ill and that the diagnosis and prognosis is correct; has the capacity to make the decision to end their own life; and has a clear and settled intention to do so, which has been reached on an informed basis, without coercion or duress, and having been informed of the palliative, hospice and other care which is available.[10]
  • Assisted dying would not be available to those under 18. In addition, it would only be available for those who have been residing in England and Wales for over a year (to prevent individuals travelling to England solely to make use of the legislation).[11]

If the conditions are satisfied, the attending doctor may write a prescription for the necessary medication but it would only be delivered after a 14-day “cooling off” period (or six days if both doctors agreed that the person is likely to die within one month).  The attending doctor or another doctor or nurse authorised by the attending doctor would deliver the medicine at the patient’s request, check that the person had not revoked or did not wish to revoke their declaration, and remain with the person until the medicine had been taken and the person had died or the person had declined to take the medicine. While the doctor could help with the preparation of the medication, the individual must self-administer. It is explicitly stated that the Bill does not authorise an assisting health professional to administer medication to another person with the intention of causing that person’s death.

A doctor or other person has no duty to participate in anything to which they have a conscientious objection.[12]

Under the Bill, codes of practice may be promulgated by the Secretary of State, particularly in relation to the assessment of whether a person has a clear and settled intention to end their own life (including (i) assessing whether the person has capacity to make such a decision; (ii) recognising and taking account of the effects of depression or other psychological disorders that may impair a person’s decision-making; and (iii) the information which is made available on treatment and end of life care options available to them and of the consequences of deciding to end their own life).[13]

The Bill creates three offences:

  • making or knowingly using a false declaration under the Bill;
  • wilfully concealing or destroying a declaration made under the Bill; and
  • knowingly or recklessly provides a medical or other professional opinion which is false or misleading in a material particular.[14]

Monitoring is to be carried out by the Chief Medical Officers, who will submit an annual report on the operation of the Act[15] which must be published publically.[16]

Criticism and Opposition to the Assisted Dying Bill

Support for the Bill has been publically expressed by a number of organisations and individuals, including Dying In Dignity; the British Humanist Association; the former Archbishop of Canterbury, George Carey; Desmond Tutu; and Boris Johnson, Mayor of London. Surveys of public opinion indicate that 70-80% of the British public support a change in the law.[17]

However, there is also significant criticism and opposition to the Bill, particularly amongst medical professionals with the British Medical Association, the Royal College of Physicians, the Royal College of General Practitioners, the Royal College of Surgeons, Living and Dying Well, and the leaders of major faiths in the UK all speaking out against any change in the law.

The opposition can generally be categorised under two headings:

  • Principle – relating to matters such as the sanctity of life (including concerns that an individual’s right to commit suicide, whilst understood, should not be encouraged or normalised); and the alternatives to choosing to die. Supporters of a change in the law typically cite the concept of personal autonomy in response.
  • Practice – the extent of application of the Bill, and availability and operation of safeguards.

This article focuses only on the practical and legal aspects, rather than a wider consideration of the ethical, moral and philosophical issues.

Specific issues relating to the Assisted Dying Bill

The main criticisms of the Bill are as follows:

  • Eligibility;
  • Assessing capacity, and the role of undue influence;
  • Role of doctors;
  • Monitoring the law.

Eligibility

The Bill is limited to those suffering from terminal illnesses with a prognosis of less than six months. However, doctors have emphasised how difficult it is to accurately make such a prognosis.  Evidence given to the House of Lords Select Committee stated that while it was possible to make reasonably accurate prognoses of death within minutes, hours or a few days, the scope for error could extend into years when considering prognosis as a matter of months.[18]

In addition, any change in the law (under current proposals) would not apply to those suffering from progressive conditions such as motor neurone disease, severe paralysis or “locked in” syndrome. However, it is precisely those conditions which have given rise to the “right to die” cases considered by the UK Supreme Court and the European Court of Human Rights (as discussed further below). This raises two issues – firstly, the Bill doesn’t cover those conditions which have given rise to the most difficult and controversial cases so far; and may also be used as a springboard to extend it to those conditions (and others) at a later date.

Assessing capacity, and the role of undue influence;

Certifying doctors must satisfy themselves that the individual “has the capacity to make the decision to end their own life; and has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress.”

However, while capacity is defined by reference to the Mental Capacity Act 2005, no guidance is given as to how doctors should conduct such an assessment. This is problematic for a number of reasons:

  • In contrast to the previous Bills put forward by Lord Joffe, there is no requirement to refer patients for psychiatric evaluation in cases of doubt.[19] Further, the Bill makes no provision in respect of individuals who may be suffering from depression, and therefore whose decision making is impacted.
  • Doctors are unlikely to be best placed for assessing capacity of patients and particularly any undue pressure that is being brought to bear, especially without guidance.
  • Matters of mental capacity, coercion or undue influence are so significant to the issue of safeguards that they should not be consigned to codes of conduct to be promulgated by the Secretary of State following the but should be scrutinised as part of the overall package of legislation to be considered by Parliament.

Role of doctors

The Bill will rely on doctors in order for its operation and effect, and therefore the opposition of doctors and medical organisations should not be overlooked. There are concerns that a majority of doctors (who, according to the BMA in an interview on 15 July 2014, see their role as alleviating suffering and looking after people, rather than helping people to end their life) would decline to assist and therefore individuals would have to approach the minority of doctors who would be willing to assist but would have no familiarity with the patient or their history (and therefore would be worse placed to assess capacity issues).

It has previously been suggested that involvement from legal professionals would be more appropriate. Lord Joffe’s original Bill required that the declaration be witnessed by a solicitor or public notary who had to certify that the patient was personally known to, or had proved his identity to, him; it appeared to him that the patient was of sound mind and had made the declaration voluntarily; and he was satisfied that the patient understands the effect of the declaration.

Alternatively, a number of organisations have suggested that the role of certifying or approving the individuals decision should instead be undertaken by the courts who are used to dealing with such difficult decisions, particularly in the Family Courts.[20] Indeed, in the Supreme Court decision in R v Nicklinson, Lord Neuberger suggested that risks to vulnerable and elderly people “if no assistance could be given to a person who wishes to die unless and until a Judge of the High Court has been satisfied that his wish to do so was voluntary, clear, settled and informed.”[21]

Monitoring the law

In addition, the monitoring provisions in the Bill are very limited.

No equivalent provision exists in the Bill to Lord Joffe’s requirement that a doctor who prescribed medication to an individual had to report his actions to a monitoring, and send copies of documentation including evidence that the qualifying conditions had been met; the declaration; and a note by the assisting physician stating that he was satisfied, at the date and time of his having assisted the patient to die, that all requirements had been met and indicating the steps taken to end the patient’s life including the description and quantity of the medication and any means of self-administration prescribed or provided.

While the approach in Lord Falconer’s Bill may be that these are matters to be dealt with in regulations or codes of practice, it is suggested that these are matters too significant to be left until after the legislation has been passed.

Jurisprudence

The existence of a “right to die” has been considered in detail by both the UK Supreme Court and the European Court of Human Rights.

In Airedale NHS Trust v Bland, the House of Lords held that it was lawful for doctors to discontinue treatment of a person who was in what was then called a persistent vegetative state; however, Lord Browne-Wilkinson noted that “the doing of a positive act with the intention of ending life is and remains murder”.[22]

In R (Pretty) v Director of Public Prosecutions, Mrs Pretty (who suffered from the progressive condition of motor neurone disease) challenged that assertion by Lord Browne-Wilkinson, and argued that (i) the refusal of the DPP to grant her husband proleptic immunity from prosecution if he assisted her in killing herself (which she wished to do when her disease became intolerable), and/or (ii) the prohibition on assisting suicide in s 2, violated her rights under arts 2, 3, 8, 9 and 14 of the European Convention on Human Rights (the “Convention”). The House of Lords held that Mrs Pretty’s desire to end her life prematurely did not engage her rights under any of those articles.

Mrs Pretty then appealed to the European Court of Human Rights, who found that while her Convention rights had not been violated, her art 8 right to respect for a private and family life had been interfered with.[23] However, this interference was justified as the restriction was in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others. In particular, the ECHR noted that:

The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided… It does not appear arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.”[24]

In the later ECHR case of Haas v Switzerland, the Court noted “the vast majority of member states seem to attach more weight to the protection of the individual’s life than to his or her right to terminate it… the states enjoy a considerable margin of appreciation in this area.”[25]

Of particular relevance to the draft Bill presently under consideration, the Court in Haas also noted that “the right to life guaranteed by article 2… obliges states to establish a procedure capable of ensuring that a decision to end one’s life does indeed correspond to the free wish of the individual concerned”.[26]

In R (Purdy) v Director of Public Prosecutions (a case on assisted suicide), the House of Lords (following the ECHR decision in Pretty v United Kingdom and declining to follow its own decision in R v Pretty) found that the refusal of the Director of Public Prosecution to confirm to Mrs Purdy its likely approach if her husband assisted her in committing suicide violated her art 8 rights. Accordingly, Lord Hope said at para 56, the DPP should be required to “promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution.”

Following that decision (and consultation), the Director of Public Prosecution published the “Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”, which listed public interest factors, in favour of and against prosecution, with a particular focus on the motivations and actions of the suspect in cases of assisted suicide, rather than the characteristics of the victim.

That policy was considered in R (Nicklinson) v Ministry of Justice in a judgment handed down by a nine-member Supreme Court. The Supreme Court considered whether the present state of the law of England and Wales relating to assisting suicide infringed the Convention, and whether the DPP Policy on assisted suicide was lawful.

The Supreme Court held that whether the current law on assisted suicide was incompatible with art 8 lay within the UK’s margin of appreciation, and was therefore a question for the UK to decide. While five Justices held that the Supreme Court had the constitutional authority to make a declaration that the general prohibition on assisted suicide in s 2 was incompatible with art 8, only two Justices (Lady Hale and Lord Kerr) would have done so. The other four Justices concluded that the question whether the current law on assisting suicide was compatible with art 8 involves a consideration of issues which Parliament was inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliament’s assessment.

The Supreme Court’s decision also contained an extensive discussion on assisted dying. In concluding whether the present legislative regime infringed art 2 of the Convention, Lord Neuberger stated: “Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made… However, bearing in mind… the attention the matter has been given inside and outside Parliament over the past twelve years, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconer’s proposals.”[27]

Concluding observations

The authors express no opinion on the moral, ethical or philosophical implications of a “right to die” or assisted dying.

However, regardless of whether the reader supports or opposes the general principle, the Assisted Dying Bill as currently drafted is unsatisfactory.  Significant amendments are required in order to ensure the protection of vulnerable or elderly individuals, both by strengthening the eligibility criteria (particularly in relation to the assessment of capacity and “clear and settled intention”) and ensuring the appropriate monitoring systems are in place. Such matters are far too important to be left to “codes of practice” developed after the passing of legislation. Serious consideration should also be given to whether such responsibility should be placed on the shoulders of a medical profession unwilling to bear it, or passed to the judicial system which is accustomed to considering difficult decisions and making the appropriate enquiries.


[1] In such a debate, a number of terms are utilised. Assisted dying typically refers to the practice of allowing terminally ill, mentally competent adults with choice and control over the timing and manner of their death by self-administering medication. Assisted suicide is a wider practice than assisted dying, and may allow chronically ill and disabled people help to end their lives. Voluntary euthanasia allows a doctor to directly administer life-ending medication to a patient at their request.

[2] Assisted Dying has also been debated on a number of occasions, both in connection with draft bills and separately – see, for example, 10 October 2005 (debating Report of the Select Committee on the Assisted Dying for the Terminally Ill Bill (published on 4 April 2005)); 13 February 2012 (application of the policy published by the Director of Public Prosecutions relating to cases of encouraging or assisting suicide); 5 December 2013 (debate on assisted dying legislation for terminally ill patients); 12 December 2013 (debate on proposals to legalise physician-assisted suicide); 5 March 2014 (debate relating to the application of the policy published by the Director of Public Prosecutions relating to cases of encouraging or assisting suicide).

[3] Further, in 2009, Lord Falconer also proposed an amendment to the Coroners and Justice Bill (now the Coroners and Justice Act 2010) which would have decriminalised the provision of assistance to terminally ill persons intending to travel abroad to commit suicide, provided the terminally ill individual had been certified by two medical practitioners. That amendment was defeated by 194 votes to 141.

[4] Unless otherwise stated, all references are to the relevant provisions of the Assisted Dying Bill (HL Bill 6).

[5] Section 1.

[6] Explanatory Notes, para 3.

[7] Section 2.

[8] This is in contrast to the widely-drawn Assisted Suicide (Scotland) Bill currently under consideration by the Scottish Parliament, which applies to persons suffering from “an illness that is, for the person, either terminal or life-shortening, or (b) a condition that is, for the person, progressive and either terminal or life-shortening.” (s 8(5))

[9] Section 3(1).

[10] Sections 3(3), 3(4); Schedule.

[11] Explanatory Notes, para 5.

[12] Section 5.

[13] Section 8(1).

[14] Section 10.

[15] Section 9(1).

[16] Section 9(3).

[17] The validity of results of such surveys is disputed by Care Not Killing, which states “… most polls of this nature are based on answers to Yes/No or Either/Or questions without any explanatory context and without other options – eg good quality palliative care – being offered… Most people have little understanding of the complexities and dangers in changing the law in this way and opinion research consists therefore to a large extent of knee-jerk answers to emotive – and often leading – questions.”

[18] House of Lords Select Committee Report on the Assisted Dying for the Terminally Ill Bill (4 April 2005), per Royal College of Physicians at p44, para 118

[19] Similar provisions also exist in assisted dying laws in Oregon (on which Lord Falconer’s bill purports to be based) and The Netherlands

[20] See, for example, interview with Lord Coleridge on 15 July 2014; R v Nicklinson [2014] UKSC 38 per Lady Hale at para. 314

[21] R v Nicklinson [2014] UKSC 38 per Lord Neuberger at para 123

[22] Airedale NHS Trust v Bland [1993] AC 789 per Lord Browne Wilkinson at p885.

[23] In three subsequent decisions, the ECHR has stated that art 8.1 encompasses the right to decide how and when to die, and in particular the right to avoid a distressing and undignified end to life (provided that the decision is made freely) – see Haas v Switzerland (2011) 53 EHRR 33, para 51; Koch v Germany (2013) 56 EHRR 6, paras 46 and 51; and Gross v Switzerland (2014) 58 EHRR 7, para 60.

[24] Pretty v United Kingdom (2002) 35 EHRR 1 at para 76.

[25] Haas v Switzerland (2011) 53 EHRR 33, para 55.

[26] Haas v Switzerland (2011) 53 EHRR 33, para. 58.

[27] R (Nicklinson) v Ministry of Justice [2014] UKSC 38 at para. 118

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Female genital mutilation: a breach in the UK’s duty of care?

Administrator 1 : July 18, 2014 11:44 am : Blog, Headline, Human Rights

A report by the Home Affairs Committee (HAC) is a response to what it calls the “ongoing national scandal” of female genital mutilation (FGM). FGM is the mutilation of the genitalia of young women and girls for non-medical reasons. The history of FGM in the UK makes for sobering and shocking reading. It is estimated that 170,000 women and girls are living with the legacy of FGM in this country and 65,000 girls aged 13 or under are at this moment at risk of mutilation. Despite having been criminalised here in 1985, there has not been a single successful prosecution.

On behalf of the Bar Human Rights Committee’s (BHRC’s), Dexter Dias QC chaired and co-wrote a report to Parliament arguing the case that by virtue of the collective inaction of government after government, the UK has been in breach of its international law obligations to protect young women and girls from mutilation. The consequence of this is that thousands of girls resident in the UK have been genitally mutilated who could – and should – have been saved. This evidences a serious breach in the UK’s duty of care. This analysis was substantially accepted by the Parliamentary Committee and provides a vital factual backcloth to the current public prominence of FGM.

Broadly, the HAC report is directed at understanding how this calamitous situation has come about and what should be done to rectify it.

What is the legal framework regarding FGM?

In 1985, the UK passed the Prohibition of Female Circumcision Act 1985. This legislation was supplemented and superseded by the Female Genital Mutilation Act 2003 (FGMA 2003). The change of name reflects:

  1. the fact that genital mutilation can fall short of full circumcision
  2. the use of the word circumcision can confuse this social practice with male circumcision, and;
  3. while there has been much critical debate about the term “mutilation”, marking as it does a sense of moral deprecation, it is a term used by the UN, the EU, and every major international rights organisation

FGMA 2003 significantly extended the range of criminal sanction, creating extra-territorial offences. This was a critical change. A distinctive characteristic of this social practice is that affected communities (typically from a broad geographical swathe from the Near East, through Egypt and the Horn, through most of Sub-Saharan Africa) are mobile. Evidence exists that girls are taken back to countries of family origin during the school holidays – what is macabrely called the “cutting season” – to undergo mutilation abroad. The law sought to criminalise this practice – but not, regrettably, without creating further legal problems.

How does the report propose to tackle the issue of prosecuting FGM?

The BHRC report emphasised that it is dangerous and potentially self-defeating to place undue reliance on an overly punitive approach. It is unlikely that one can “prosecute” FGM out of existence. Thus it is vital to understand the complex social process that results in the entrenchment of this cultural norm in affected communities. It exists for a number of concrete social and cultural reasons. Moreover, it has existed for hundreds, if not thousands, of years.

FGM is gender violence in service of various purposes. These vary subtly between practising communities and it is important to be alive to the nuanced differences. However, there is a clear common line:

  1. the control of women
  2. the securing of marriageability
  3. the preservation of familial honour
  4. the avoidance of social stigma
  5. the protection of kinship status – often overlaid with the misconception that mutilation is prescribed by religion (it is not authorised by any religion)

The BHRC’s stance was materially informed by that of the UN, that what is most effective in the quest for “eradication” is to have meaningful community engagement to promote a “collective abandonment”. In its report publication press release, the HAC stated that a “number of successful prosecutions would send a clear message to those involved that FGM is taken with the utmost seriousness in the UK and will be punished accordingly”. Given what amounts to an abject history of institutional paralysis, this is unarguably correct.

However, one must also understand the reasons for the lack of prosecutions. They range across:

  1. the unwillingness and inability of those at risk to come forward;
  2. the lack of understanding and training among frontline professionals in the key areas of health;
  3. education and social services;
  4. legal lacunae;
  5. the lack of institutional appetite to acknowledge the practice; and
  6. confusion about our legal obligations when confronted with a “cultural” practice.

There is an obvious gap in the child protection afforded by the existing legislation. Under the existing statutory framework it is only a crime to be concerned with the taking of a girl abroad for mutilation if that child is a British citizen or is permanently resident in the UK. This definition is inadequate in two ways. First, it failed to recognise the state’s obligation to protect all children within its jurisdiction (deriving from the Convention on the Rights of the Child 1989). Second, it failed to reflect the mobile, transnational character of practising communities. In its report, the HAC states that in the Queen’s Speech in June 2014 the government committed to widening the definition to protect children “habitually resident” in the UK. This is a step in the right direction.

What are the main things lawyers need to be mindful of in dealing with this issue?

FGM is a crime. It is child abuse. It is a fundamental violation of the human rights of some of the most vulnerable in society. There is no “cultural” defence. Indeed our treaty obligations underline that we have a positive duty to intervene proactively to change social practices that act to discriminate against or damage women and girls – see the Convention on the Elimination of All Forms of Discrimination against Women, art 5 (CEDAW) adopted in 1979 by the UN General Assembly. By full commitment to legal remedies, both civil and criminal, we are promoting the human rights of at-risk children and young people.

Are there any patterns/trends emerging in the law in this area?

There are two prosecutions currently before the courts. There are likely to be more. After many years of campaigning by survivor groups and legal activism by concerned human rights lawyers, we have reached a critical mass of public attention and civil society concern. We may reach the stage that France has arrived at, where there have been over 100 prosecutions. Several research studies, both in the UK and Europe, have been launched to produce empirical data to promote a better understanding of the practice. This is indispensable to more evidence-led legal intervention.

Predictions for future developments?

The EU’s vision is one of a world without FGM. In advocating such a stance, it seeks a change of perspective, moving the public perception of FGM on from its previous preoccupation with the blood and pain and desecration. These are the realities of FGM but such depictions tend to dehumanise and disempower affected young women and construct them as “victims”. Further, these approaches are vigorously contested by survivor organisations and the next phase of the fight against FGM is likely to feature more voices of survivors. While prosecution will play a part, it is essential to keep it in its proper proportion. It is a piece of the jigsaw, and only a small piece. It is essential to prioritise prevention over punitivism. In this, the law – through proactive civil law intervention – can play a critical part.

The BHRC report argued that a range of civil remedies akin to those available for forced marriage should be created. While the HAC report has in principle acknowledged this suggestion, it aims to “consult” further. It is vital that the government minimises any further delay in the implementation of tailored civil preventative remedies.

Overall we have reached a watershed moment in this country. It is entirely conceivable that within a generation FGM in the UK will have been drastically reduced and all but eliminated. However, as the UN notes, the complete eradication of the practice will require the cessation of FGM in the 28 or so practising countries. With this in mind, the UK government has committed millions of pounds to educational projects and that, along with meaningful community engagement here, will undoubtedly be the most effective way forward.

We can become inoculated to the sheer magnitude of the human rights abuse that FGM constitutes. This year three million more children will be genitally mutilated worldwide. In the UK, 65,000 are at grave risk. Imagine the Royal Albert Hall on the Last Night of the Proms. Imagine every seat is filled by girls aged 13 and under. And imagine that vast concert hall is filled night after night for two weeks. That is how many girls in the UK at this very moment face the grave risk of FGM.

We can – and must – do more to protect them. And as lawyers, we can make a decisive difference.

By Dexter Dias QC (Interviewed by Neasa MacErlean).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Google “Right to be forgotten” – freedom of expression v privacy

Administrator 1 : July 17, 2014 9:35 am : Blog, Featured, Human Rights, Uncategorized

Gil C / Shutterstock.com
By Caroline Benham

In the context of the draft EU General Data Protection Regulations (the Draft Regulations) – which will replace the current EU Data Protection Directive 95/46/EC (the Directive) – should the European Court of Justice’s (ECJ) Google Spain “Right to be forgotten” ruling be welcomed? Is it testing the “right to be forgotten” contained in the Draft Regulations before it is enshrined in legislation, or does it simply amount to the clumsy implementation of a “new” right without a democratic debate on its wider implications?

Whatever the answer, the ruling has polarised commentators’ views by confirming that what had been seen as a new right to be forgotten contained in the Draft Regulations, already exists in the current Directive. On the one hand, this has attracted wide spread criticism from business communities as amounting to a derogation of freedom of expression and, on the other hand, high praise from supporters of individuals’ rights to privacy.

Decision

For the first time, the ruling clarifies that the current Directive already contains a right for individuals to be forgotten. Individuals (as the owners of personal data) can request that a search engine operator removes personal data which they consider “inadequate and no longer relevant” from search results. This is because the ECJ found that search engines are “data controllers” (ie they process personal data). It does not matter that, in the case of Google, its “processing” of data takes place on US based servers because its activities are inextricably linked to those of Google Spain and therefore its data processing has to fall under the remit of European legislation.

Immediate implications

As a result of the ruling, Google and other search engines are having to rapidly develop processes for obtaining and assessing requests for data removal made by individuals. In the UK, if an individual disagrees with the decision which Google reaches, they can appeal the decision to the Information Commissioner’s Office.

Debate

Article 17 of the Draft Regulations already contained provision for an individual’s right for personal data about themselves to be forgotten and (going one step further than the ECJ) to be erased. The Draft Regulations (which are unlikely to come into force until late 2016/ early 2017) had already prompted extensive and ongoing debate.

But, there is now a certain sense that this democratic debate has been circumvented as a result of the fait accompli presented by the ECJ’s decision. Without detailed guidance, the ECJ has placed Google and other search engines in what some see as the impossible position of having to weigh up an individual’s right to have information removed against rights of freedom of expression and legitimate broader public and commercial interests in accessing and having the right to know about information. And, the debate about the very desirability of the right to be forgotten is now taking place in the context of it being implemented through processes determined by commercial organisations, rather than beforehand.

Whilst Google has to take its task seriously (and this week, for example, it announced a stellar line up for its panel of advisors) it is a position which it doesn’t want to be in and is keen to keep its story in the headlines. Recently, it started to inform news organisations of their articles which would be de-indexed to bring the debate back to the fore; its Chief Legal Officer, David Drummond, also published an article in the Guardian on 10 July 2014 entitled We need to talk about the right to be forgotten stressing why Google considered that continuing to restrict index removals to a very short list was most in keeping with the art 19 right to freedom of expression enshrined in the Universal Declaration of Human Rights.

The situation can be rescued if the experiences of Google and others affected by the decision can be used as a working example to determine both the true practicality of implementing a right to be forgotten and the desirability of such a right which critically informs and shapes the Draft Regulations and how they are interpreted and implemented. The clarity, which this carefully drafted and implemented legislation could bring, may well then be welcomed in contrast to the current position caused by the ECJ’s ruling. For now, however, it is too soon to tell and national data protection authorities in the EU such as the Information Commissioner’s Office (ICO) have a difficult task to monitor compliance with the ECJ’s ruling.

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DRIP: 5 unjust government arguments

Administrator 1 : July 16, 2014 3:53 pm : Blog, Headline, Human Rights

By David Cook

It is suggested that the USA PATRIOT Act, legislation swiftly enacted by US Congress in the wake of the 11 September 2001 terrorist act was a “backronym” designed to play on the national pride around at the time. Clever political manoeuvring? Potentially so.

One therefore wonders what considerations were given to the naming of the Data Retention and Investigatory Powers bill, given that the acronym is DRIP. That is what this legislation represents though – the further dripping away of our digital rights.

The Government rely on five arguments to justify this emergency legislation, which are worthy of consideration:

1.    The situation is an emergency and we need legislation rushing through

The European court’s decision in the case of Seitlinger was handed down at the start of April 2014. The Government has then sat on their hands until a week before Parliamentary recess and then cited the lack of time to debate it properly as the justification for it being an emergency.

2.    The legislation simply retains the status quo and does not go further than what already existed

This is incorrect. The legislation amends the Regulation of Investigatory Powers Act 2000 (RIPA) to extend the Government’s surveillance powers in significant ways by both extending the territorial scope of RIPA and extending the definition of “telecommunications service” to include, for example, webmail services.

3.    The legislation is necessary in order to help catch criminals

Of course, communications evidence is often crucial in the fight against terrorists and paedophiles and it is right that the police have such powers. However, the legislation goes further than that and allows for blanket data retention. For example, all data could be retained for any and all communications in a specific locality within which a serious offence has been committed, rather than a more directed communications retention approach.

This issue was initially considered by the European court and was rejected as being absolutely disproportionate and one that interferes with our right to privacy and to a private family life.  Other European counties such as Austria, Belgium and Germany have followed the European suggestions in this regard and without issue. Serious crime can clearly still be tackled without this dragnet style blanket data retention.

4.    There is a sunset clause

This legislation is set to expire on 31 December 2016. The Government suggests that this sunset clause will “strengthen oversight and transparency” but, if that was their intention, they should have set a date that was closer in time. There does not seem to be any proper basis to set the sunset clause so far in the future and, given their recognition that this legislation requires scrutiny, the delay seems odd.

5.    The legislation takes into account the European court ruling

This is not correct. The main focus of the European court judgment related to blanket data retention representing a severe interference with our rights to respect for private life and protection of personal data. The legislation not only allows for blanket data retention but goes further than the existing legislation did. It is difficult to understand how the Government suggests that this takes into account the European court ruling.

The DRIP legislation can be split into its components – the data retention aspect and the investigatory powers aspect. The data retention aspect seeks to allow blanket data retention despite a European court judgment that this was disproportionate and a breach of civil liberties. I find that objectionable both in principle and as a matter of law (in so far as it falls within the scope of EU law).  Furthermore, piggybacking new investigatory powers legislation through as part of the emergency legislation and precluding a proper analysis and consideration of the changes is shocking.

DRIP seeks to extend the territorial reach of our interception powers by allowing communication intercepts across the globe. These are new powers: not just for the UK but across the globe. What is equally concerning is that the Home Secretary has denied that this is the case and the Government has rushed the legislation through the various stages in a single day and without it being properly considered and debated. In my view that is a travesty. Our MPs have massively let us down here – they owed it to us to challenge this legislation. The removal of civil liberties is rarely sudden and dramatic – it happens by a DRIP.

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Impact of legal aid cuts on the Citizens Advice Bureau

Administrator 1 : July 15, 2014 9:46 am : Blog, Criminal, Featured, Human Rights

By Pat Feast and James Hand

The cuts in legal aid for professional advice wrought by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) may be seen to have increased the opportunities – and workload – for volunteers and charities. Indeed, there are reports that the government intends to fill the gap regarding divorce by setting up law centres run by students (see here and here). However, the cuts, often portrayed as affecting “fat cat” lawyers, can harm charitable and volunteer services as can be seen through the example of Citizens Advice Bureaux up and down the country.

Established in 1939, the Portsmouth CAB was one of the initial 20 bureaux, set up to provide emergency services to the local community. By 1942 the number had grown and were staffed entirely by volunteers and supported by both local and central government. By 1950 all central government help had ceased and a central support service was only able to continue because of grants from charitable trusts, such as the Joseph Rowntree foundation.

Whilst  funding has fluctuated (for example the Rent Act 1957 greatly increased the number of enquiries and in 1960 government funding was re-introduced) the number of enquiries has increased dramatically, with debt, employment and social security being major areas of concern. The withdrawal of legal aid for social welfare law has had a devastating impact on the work of the Citizens Advice Bureaux who now deliver advice services from over 3,300 community locations in England and Wales, run by 336 registered charities (2012/13).

According to Lynne Davies, Chief Executive Officer of the Portsmouth Citizens Advice Bureau:

“The withdrawal of legal aid for Social Welfare Law has left hundreds of victims of poor DWP decision making struggling to navigate their way through the appeals process. Our LSC funded welfare benefits specialists achieved a 75% success rate in cases proceeding to Tribunal, compared with around 38% nationally. The expertise lost in this area of law is irreplaceable, as is the support and encouragement those specialists gave to our volunteer advisers.”

Under the legal aid contract, the CAB could claim as disbursements the costs relating to medical evidence for disability benefit appeals. Now, not only are “vulnerable, sick and disabled people still being found fit for work when clearly they are not and the mandatory reconsideration process leaves ESA claimants who are challenging a decision without benefit while that process runs its course”, but the costs for medical evidence need to be found elsewhere as the CAB “have been unable to negotiate a local arrangement for such evidence to be provided free of charge to patients.”

The CAB have raised their concerns about the withdrawal of legal aid and “the approximate 70% drop in applications to social security appeal tribunals” but the Lord Chancellor and Secretary of State for Justice, Chris Grayling has rejected such concerns about a link to the withdrawal of legal aid and states that the fall:

“…could be due to a number of reasons including a reduction in Employment Support Allowance Work Capability Assessment (WCA) activity and mandatory reconsideration across DWP benefits – where a DWP decision-make looks again at individual cases before it goes to an appeal tribunal – alongside wider reforms to make the system work better.

Robust and reliable data is not yet available to assess the impact of these changes on tribunal receipts.  DWP, the department responsible for administering mandatory reconsideration, is looking to publish Mandatory Reconsiderations data when they judge it is of suitable quality to be published as an Official Statistic.”

That reliable official data is awaited with interest. Meanwhile, in light of the anecdotal fact that “Vulnerable individuals are struggling to get access to legal representation” (to quote the Chairman of the Bar Nicholas Lavander QC) the Bar Council have launched a research project into the effect of LASPO which will report in September.

The University of Portsmouth was one of the first Universities in the UK to integrate CAB training and advice work into the curriculum, with 95 students having provided in excess of 17,000 hours of advice for CABx in the Portsmouth area between 2004 and 2014. The continuing relationship, and those elsewhere, does mean that staff and students can provide some valuable support. However, whilst the general public benefit greatly from the contribution of such law schools offering this free advice, their role is limited by the fact that the emphasis is placed on student education and thus in order to have sufficient impact on lost expertise some funded professionals must be engaged to enhance and extend the services available.

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Revenge porn – are we in need of stronger laws?

Administrator 1 : July 14, 2014 9:34 am : Blog, Criminal, Headline

What has led to the calls for a criminal sanction to be introduced for revenge porn?

Calls have been prompted largely by the rise of revenge porn itself, which in turn is attributable to the omnipresence of smartphones that allow photographs to be taken and uploaded to the internet within seconds. No specialist knowledge is required and many “apps” allow pictures to be uploaded at the click of a button. Once an image is on the internet in digital form it can be reproduced time and time again. The call for a specific criminal sanction follows considerable lobbying by campaigners and the issue receiving national attention following the revelation that the prime minister’s nanny was the victim of revenge porn. At present there is no specific criminal offence that adequately addresses the problem. Legal action and publicity in the US have also put pressure on the government to act.

Are there currently any offences under which an individual could be charged for publishing/posting explicit material of another person without their consent?

This will depend on the circumstances of the case. If the uploading of an image occurs more than once or forms part of a wider campaign of harassment then the offence of harassment contrary to the Protection from Harassment Act 1997 might be committed. If, as is often the case, there is an element of blackmail then the Theft Act 1968, s 21 applies. In certain situations, offences under the Communications Act 2003 or Malicious Communications Act 1988(MCA 1988) might be relevant (for instance sending a communication with intent to cause distress or anxiety contrary to MCA 1988— if the person responsible has communicated the fact of the publication to the victim or a third party in a manner which is indecent or grossly offensive, or threatening in nature). If the image has been obtained by unauthorised access to a computer then an offence may have been committed under the Computer Misuse Act 1990. If the image was taken without the victim’s knowledge this may constitute the offence of voyeurism under the Sexual Offences Act 2003.

What are the potential challenges in drafting a law to tackle this activity?

The issue of consent is not a new concept for judges and juries and in any event, in revenge porn cases it is likely to be an issue. The only obstacle is likely to be determining when a photograph is “intimate” and deciding where the line should be drawn.

Do you envisage any practical difficulties in prosecuting or defending an individual charged with such an offence?

It will be necessary to establish beyond a reasonable doubt that the defendant is the one who has uploaded the image. A defendant might claim that the image was uploaded by someone else (perhaps the complainant themselves or by a third party who had accessed their computer or phone). Therefore, technical evidence will normally be required. This means orders will need to be obtained against websites, ISPs and/or computers and telephones will need to be seized. Revenge porn will pose a challenge for police forces if they do not have the requisite specialist resources to investigate.

What are the pros and cons of criminalising the offence or relying on civil legal remedies?

Criminalising the offence

The act of posting intimate photographs on the internet to punish or harass the subject is clearly reprehensible and warrants a criminal sanction. It causes victims considerable distress (and has led to suicides). The humiliation can potentially be never-ending if the image is published on a website outside of the jurisdiction which ignores removal requests. The introduction of a specific criminal offence, properly publicised, should act as a deterrent (to a degree). The downside of introducing an offence is the cost to the public purse and potentially curbing or criminalising freedom of expression, although the latter should not be an issue if the offence is drafted properly.

Civil legal remedies

The existing civil law is technically well-equipped to deal with revenge porn. Claims can be brought for the misuse of private information, breach of confidence, harassment and copyright. Injunctions and Norwich Pharmacal orders (Norwich Pharmacal Co and other v Commissioners of Customs and Excise [1972] 2 All ER 943) can be sought. However, there are two significant practical obstacles:

• The cost of bringing proceedings — even if the claimant can afford costly litigation, will the defendant be able to meet any award of damages/adverse costs order, and;

• enforcement issues where the websites hosting the images are hosted overseas — an English order may simply be ignored or, in some instances, local laws may offer immunity.

Could websites be compelled by law to remove revenge porn?

Yes under existing civil law, particularly when the site owners are on notice and refuse to remove images (although if the website is hosted abroad then compliance/enforcement cannot always be guaranteed). I am unaware of a criminal prosecution being brought against a website in the UK, but theoretically there is no reason why action could not be taken if the circumstances potentially gave rise to criminal liability under any of the existing law mentioned above. This will be particularly so where a website is set up to facilitate revenge porn.

What should lawyers do next?

Lawyers should obviously look out for any new legislation. When revenge porn occurs the legal issues are often relatively clear-cut on the facts. Securing evidence is important and there will be many strategic decisions to make. For instance:

• Should a Norwich Pharmacal order be sought against a website?

• Should a complaint be lodged with the police?

Damage limitation and writing to one or more websites securing the removal of images will nearly always be a priority.

By Iain Wilson, managing partner of Brett Wilson LLP (Interviewed by Kate Beaumont).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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