Article 5: The Right To Liberty – And Arrest

Article 5 of the European Convention on Human Rights (1950) sets out the right to liberty of person. However, it is naturally qualified; whilst setting out the right of freedom of person, Article 5 also can not impede upon the right of the police to detain and arrest.

However, in what circumstances will an arrest be legal is made complicated by certain parts of the Article. The key clauses here are:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.

A recurring trend has been for British police forces to detain people on the suspicion, belief or evidence that they are about to commit a crime. Whilst is it often quite sensible to arrest and detain people prior to any harm to others or danger to others, this pushes the legal boundaries. After all, can such an intention and capacity to commit a crime be proved in all cases prior to the event? On a point of law, the matter at question is not inchoate offences, but rather human rights.

British police forces can already stop people if they have suspicion that violence has occured, or will occur. Such search orders under Section 60 of the Criminal Justice and Public Order Act (1994) are very restrictive, though, and can only be used in certain times, places and scenarios. They have been challenged legally under human rights law – and have been found to be legal by a reluctant Supreme Court.

Related is recent litigation concerning Article 5. The police have in the past stopped and detained those who they had very strong suspicion were about to commit a breach of the peace. In many cases, the suspects were detained for several hours, then released without charge. Those and similar anti terror cases have given rise to leading case precedent such as Lawless v Ireland (No 3) (1961) 1 EHRR 15, Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564, Nicol and Selvanayagam v United Kingdom, (Application No 32213/96) (2001) and Brogan v United Kingdom (1988) 11 EHRR 117. All of which found that such detention under suspicion only was essentially questionable; none of those cases set out the exact status of detention under suspicion only satisfactorily, giving rise to legal uncertainty today.

The moral issue is that Article 5 prevents and protects against arbitrary detention and arrest – comparable to habeas corpus. However, the police as a matter of practicality in many cases might need to arrest and detain a suspect wth limited suspicion, or indeed find that their initial suspicion was wrong, and release the suspects without charge a few hours later. The question is – is that legal?

Here, Article 5 provides both help and hindrance. Previous recent cases have preferred either 5(1)(c) or 5(1)(b). British law has a habit of switching between the two as a matter of legal ideology. Legal and police policy dictates that the rationale behind Lawless (1961) is followed. In Lawless, it was established that Article 5 permitted such deprivations of liberty
“[Only] when such deprivation [of liberty] is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it is reasonably considered necessary to restrain from absconding after having committed an offence.”

In short, Lawless established that 5(1)(c) is to be followed relatively literally: the intention of any suspicionless detention should be to bring the accused before a court as soon as is practical. Other Judges and cases have disagreed, giving different, more nuanced interpretations of 5(1)(c). As such – the legality of such detentions is still unclear.

The latest attempt at a definitive legal answer was in R (on the Application of Hicks) v Commissioner of Police for the Metropolis [2017] (UKSC9). Here, Lord Toulson set out the dilemma that
(29) The fundamental principle underlying Article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control, but at the same time Article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others. These twin requirements are not contradictory but complementary…
(30) In balancing these twin considerations it is necessary to keep a grasp of reality and the practical implications. Indeed, this is central to the principle of proportionality, which is not only embedded in Article 5 but is part of the common law relating to arrest for breach of the peace.

The case concerned individuals who had been detained on suspicion of being about to commit a breach of the peace on the day of the Royal Wedding in 2011. They were later released without charge – and took legal action for an infringement of their rights under Article 5.

From the beginning, Lord Toulson finds that the police have an ancient right to arrest people who are about to breach the peace; that is not disputed. His supports the more nuanced interpretation of 5(1)(c), finding that
(38) In order to make coherent sense and achieve the fundamental purpose of Article 5, I would read the qualification on the power of arrest or detention under Article 5.1(c), contained in the words “for the purpose of bringing him before the competent legal authority”, as implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court … [In] the case of an early release from detention for preventive purposes, it is enough for guaranteeing the rights inherent in Article 5 if the lawfulness of the detention can subsequently be challenged and decided by a court.

His verdict is to consider the arrests as legally in line with 5(1)(c). As such, Lord Toulson slightly moved away from the strict interpretation of Lawless. He supported the more nuanced view, that detention with an aim to bring the accused to court can be qualified. Lord Toulson also makes several interesting statements and summaries obiter dicta – including on Article 5(1)(b). His leading judgement in this matter will probably therefore provide more of a discussion on the exact nature of Article 5 vis a vis pre-emptive detentions than it was supposed to solve.

Despite a quantity of case law – now including Hicks (2017) – the exact application of Article 5 is still open to interpretation. One of the most fundamental of human rights, that of the right to liberty, is itself a prisoner of its own making. In the nature of the qualifications in Article 5, that right to liberty is a complete contradiction in terms.

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PPI and Banking Mal-Practice

Although new banking malpractices like the LIBOR and FOREX trading scandals made headlines across the world, the scale of these scandals are still not on the level of what happened with payment protection insurance.

The PPI scandal has seen many thousands of people make PPI compensation claims to recover the fees on policies that they have been mis-sold.  In fact, the banks and other lenders have so far repaid many billions of pounds to wronged customers, and many people expect that they may face a total bill of far greater than that when the saga finally draws to a close.  If you have yet to make a claim, and believe you can, we strongly suggest that you do.

More about PPI

Although complaints about PPI were first known to the authorities that govern the consumer finance world (the Financial Ombudsman and the then named Financial Services Authority) as far back as the early 1990s, the emergence of there being systematic and widespread mis-selling practices only became well known in around 2008-9.

A number of complaints were investigated alleging the mis-selling of policies.  Upon closer investigation it was found that mis-selling was widespread, and a number of lenders were fined and the regulations rewritten.  The latter regulations are designed to protect the consumer, thus the ability to claim back PPI costs came about.  The banks protested and appealed, but High Court rulings in 2011 affirmed that consumers were due money back from the banks and lenders for illegal mis-selling.

Examples of Mis Sold PPI

Many PPI refunds cases involve customers who were not given the right to shop around for the best deal when, in fact, it was their basic right in the regulations to find a PPI policy, if they want it, that suits them.  Some customers were not only wrongly told PPI was compulsory, but that it had to be purchased from the lender who was giving the original loan or other credit agreement.

Other customers who suffered from mis-selling were sold policies they either did not need or that would be of no use (as they were too old for it or were self-employed and therefore not eligible).  Shockingly, many were not even told of the PPI policy and have been paying out unwittingly. In all of these cases – and there are more – making a claim is a legal right.

Making PPI Compensation Claims

Many people who make PPI compensation claims choose to use a claim company in order to make the process stress free. One such company, Oracle Legal Ltd, offers a no win no fee* deal so that you will not have to pay in the event your claim is not successful.  Their team of experienced claims handlers can help you with all advice you need on how to make your claim, you do not even need to have all your old paperwork to hand as they are able to help retrieve the information needed on your behalf – if you choose to use them.

They also give you with the use of a PPI payout calculator so you can get an idea of the amount you may be due back.  You’ll need to know the type of credit (loan or credit card etc), the amount of the borrowing, the interest rate paid and the period of time it was repaid over. More accurate figures are only possible once you provide exactly what type of PPI policy it was: single premium policy or monthly.

It is worth noting that an industry average repayment is around the £3000 mark, so it is certainly worth getting the wheels in motion if you think you might possibly have a case.  Remember, it is your basic right to claim back costs on mis sold PPI charges, so why not give them a call and see what they can do to help?

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PJS: Updated Privacy Laws for the 21st Century?

Celebrities live very much in the public eye, and are subject to intense media scrutiny. Be they actor or politician, or product of a talent show, the media is always around to report the latest celebrity news. Of course, whether the public needs or wants to know is a very different matter.

Sometimes, though, some celebrity gossip never makes it to press. Some celebrities do go to great lengths to protect their privacy, using a variety of methods, ranging from disguises – to the courts. The Supreme Court had to intervene recently to assess whether a recent celebrity indiscretion could be revealed to the British public. Currently, though, the details surrounding PJ S v News Group Newspapers Ltd [2016] UKSC 26 are protected by a court injunction.

The facts that are known about the case are as follows. PJS is married to YMA; both are “well known individuals in the entertainment business.” Between 2009 and 2011 PJS had an affair with a lady known only as AB. In January 2016, the Sun on Sunday newspaper, published by News Group Newspapers (NGN), informed PJS that it was going to publish AB’s story of the affair (and details of a liaison of PJS with AB and another person, CD). PJS responded by starting legal proceedings against NGN.

PJS claimed that publishing the story would be in breach of his legal right to privacy and confidentiality under Article 8 of the European Convention on Human Rights (ECHR). He sought an interim injunction to halt publication pending the outcome of a court hearing to determine whether publication was indeed in breach of PJS’s human rights. For the interim injunction, the court had to balance PJS’s Article 8 right to privacy, with NGN’s right to freedom of expression and freedom of the press.

The High Court refused to grant an interim injunction, considering that the public had a greater right to know about the affair, and NGN had a greater right to publish, than PJS and his children had to privacy. This was overturned by the Court of Appeal; an interim injunction suspending publication was issued, pending a full hearing on the case.

However, in April 2016, AB’s account of the affair was published, first in the United States, then in Canada, and then in Scotland. After all, the interim injunction was only binding in the jurisdiction of England & Wales. Although PJS’s lawyers managed to restrict publication overseas to hard copies only, and to prevent Internet publication in England & Wales by geo – blocking. Despite their best legal efforts, information of the affair has reached some websites in England & Wales, even though only briefly before being removed. As such, it is possible that PJS’s identity has been accidentally revealed in the UK.

On 12 April, NGN applied for the interim injunction to be set aside.The argument advanced was that, with the story published overseas, it was unlikely that the court would grant a permanent injunction. As such, the terms of Article 12(3) & 12(4) of the UK Human Rights Act (1998) governing such injunctions would not be met; meaning that the interim injunction should be set aside. As such, the Court of Appeal set aside the injunction. Such shuttling between the courts caused Supreme Court Judge Lord Mance to remark in his leading judgement that “some may still question whether the case merits the weight of legal attention which it has received.”

The matter came before the Supreme Court – who immediately restored the injunction pending a hearing into whether PJS could appeal the Appeal Court verdict. Hearing the case in May, the Supreme Court allowed the appeal.

With that permission granted, consequently PJS’s case against NGN will now be heard on appeal.

Much publicity has been given to the media and privacy aspect of the case – but that was not what the Supreme Court was overly concerned with. For the five judges (who allowed an appeal with a 4-1 majority, Lord Toulson in dissent) the case hinged on a point of law not necessarily related to privacy rules. The Court found that the Appeal Court headed by Lord Justice Jackson had effectively erred in law on several grounds regarding setting aside the interim injunction that had been granted. The point of law was Article 12 – not Article 8, or  Article 10.

Article 12 (and the case initially before the Appeal Court) concerns an injunction that is granted prior to a hearing. Under the ‎injunction, privacy is guaranteed whilst the case is being heard. However, an Article 12 derived injunction will only be granted if it is believed that the plaintiff’s case will succeed. For Lord Mance and the other justices, the central issue here was whether an Article 12 injunction should have been granted, pending a further appeal. In other words, is it likely that the trial judge will grant a permanent injunction? For the Supreme Court, it was found, on the evidence before them, that this was indeed so. As such, the temporary injunction remains – pending another appeal hearing on the matter of PJS.

As is often the case, the Supreme Court had to maintain a delicate balance between the public interest, and personal privacy. This was first memorably arrived at in the Douglas vs Hello! litigation at the turn of the century. The result of that was to establish that the legal doctrine of breach of confidence could encompass legal actions surrounding privacy under Article 8. PJS is but the latest of a long string of “kiss and tell” episodes that have (or have not) made it into the media, aided and abetted by that doctrine.

Regarding the “geo – blocking,” the infamous Spycatcher litigation of the 1980s is of relevance here. Approaching thirty years ago, it was eventually found that a controversial book by a former MI5 agent revealing all in the “kiss and tell” of the espionage world could be published in the UK, after it had enjoyed publication (and indeed literary success) in Australia and many other foreign countries. With its secrets already revealed, banning the book in the UK was (eventually) seen as pointless.

Another trial date is yet to be determined for PJS. The question is whether the Appeal Court will consider the case in line with Spycatcher, and allow publication on similar grounds – or will the verdict be in line with Douglas vs Hello!, and champion personal privacy? According to Lord Mance, there is another side to the proceedings. At p.44 he expresses the view that

“The Court will be criticised for giving undue protection to a tawdry story by continuing the injunction to trial. There is undoubtedly also some risk of further internet, social media or other activity aimed at making the Court’s injunction seem vain… On the other hand, the legal position, which the Court is obliged to respect, is clear. There is on present evidence no public interest … in the story, however much [NGN] may hope that one may emerge … and it would involve significant additional intrusion into the privacy of the [PJS], his partner and their children.”

For privacy related cases, PJS will become a leading authority. In the modern Internet era, where boundaries of jurisdictions do not overly apply in cyberspace, the case will also be very relevant. Although a very modern case, involving the Internet and celebrity gossip, the case ultimately hinges on a fresh interpretation of an old, similar case – Spycatcher.

Indeed, given the similarities, PJS is Spycatcher ‎for the 21st century – without the spies and national security angle, and with celebrity gossip instead. 

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English Votes For English Laws Arrives In Parliament

Following increasing calls for greater powers for local authorities, the rise of the ‘city government’, and of course an increasingly strident call for Scottish ‘devo max’ or independence – a quieter call has been for English votes for English laws (EVEL).

After great effort, reform and debate – English laws has arrived. Essentially, for issues that would impact upon England & Wales only, there would be an extra stage in parliamentary proceedings. Although complicated, although unwelcome in a centralised, national House of Commons, the idea was surprisingly welcomed by many. For many, it was seen as only fair, given that English MP’s can hardly vote on Scottish matters.

How EVEL works in reality in Parliamentary proceedings is that effectively English & Welsh MPS’s will get a veto over matters that do not impact upon Scotland & Northern Ireland. If a matter under debate is deemed to be and “England only” issue, then a “Legislative Grand Committee” will be required to decide upon individual parts of particular legislation that are relevant only to England & Wales. During that time, the specific matters will be debated by all MP’s. However, the input from Scottish & Northern Irish MP’s will be limited, and they will not be allowed to vote on those specific points. If a Bill is considered to be concerning “England only” issue in its entirety, then an England- only committee stage will be added to the passage of the Bill through the Commons.

Although it sounds complicated, this diagram (courtesy of the BBC) makes the EVEL process easier to understand:


Ultimately, the new rules give more powers in the House to the Speaker. It is for the Speaker to decide when a Parliamentary issue or draft Bill is an England only issue, and to oversee and implement the measures. In many cases, that decision could be unpopular with many on the green benches. the SNP (the most vocal Opposition) have openly expressed their disagreement to the measure. Labour – although recognising that the concept of EVEL does indeed have its merits – is unsure of the Bill, and how it works in reality. Labour MP’s are characteristically divided upon these issues, with Mr Corbyn yet to make up his own mind, and tell them what the Labour party policy is. Opponents of EVEL could very well used parliament proceedings to stall the matter, or to prevent the process from happening. As such, it is up to the Speaker to avoid such a pitfall – whilst ensuring that everything is done in accordance with Parliamentary procedure.

The SNP has also raised a point that the EVEL provisions could risk making the Speaker a more political role. The Speaker of the House is supposed to be impartial, and above party politics, so that they can maintain order and authority in the House of Commons. The current Speaker is John Bercow (Buckingham); although formerly a Conservative MP, whilst serving his time as Speaker, he represents no political party. The fear from the SNP and others is that the Speaker will have for venture into party politics and ideologies whilst assessing whether a measure should be heard under the EVEL provisions.

Despite all the concern and opposition, January 2016 saw the provisions of the Bill used for the first time. During the debating of the Housing & Planning Bill, the Speaker suspended the session for five minutes, to finalise which parts of the Bill applied to which nation. When the session resumed, the debate seemingly continued as normal- but the Scottish & Northern Irish MP’s were not allowed to vote in certain provisions under immediate discussion which were “England only” matters. The “consent motion” for the English & Welsh MP’s was passed- as was the Bill itself at its third reading.

The SNP continued to oppose the new rules, claiming that Scotland’s voice is being drowned out in Westminster. With the SNP the most vocal, disciplined, single-minded, outspoken and powerful bloc on the Opposition benches – that is hardly the case. Further, surely it is unfair for Scotland to have its own devolved powers and Parliament, and have a voice at Westminster – and to forbid English MP’s and England rom having the same? That is more than slightly hypocritical.

Whatever the unnecessary Parliamentary complications or the perceived unfairness – As the nation changes – EVEL or a similar system of devolution and federalisation it is the way forward for the government and Constitutional systems of the United Kingdom. Further, it helps to solve the West Lothian Question – albeit unsuccessfully. That is indicative of the whole EVEL debate: it is a welcome NAD needed idea in principle, but putting it into practice is awkward and inconvenient.

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Medical Negligence in the Dock

Despite all the advances of modern medical science and technology, and all the modern medicines possible – clinical errors can happen. Doctors, nurses, pharmacists and other medical specialists can make mistakes, despite their best efforts and all of their best endeavours for the good of their patients

Medical mistakes can happen, unfortunately. Those mistakes can range from a misdiagnosis, to a disease or illness not being disabled at all, to a simple mistake on the operating table, to the wrong medication being prescribed, and anything in between.

The result of any such medical negligence can be to leave the patient in a worse medical condition, suffering from other ailments or injuries, or even untreated for their initial medical condition. Aside from the physical damage (often extensive) and ill health that follows, it is the mental anguish and pain that can be the worst following a medical error. Recovery and rehabilitation takes time: in many cases, occupational therapy or physiotherapy are often needed. Specialist treatments or medications might be required to recover. Recovering from your injures can be very lengthy – and also expensive. Medical negligence can also take its toll upon your home and family life, and work. There is also the financial aspect to consider.

However, both professionally and legally, doctors and other clinicians are very much held accountable for their actions and the procedures they perform.

Under tort law (part of the UK civil law code), the injured patient can make a medical negligence claim against a clinician.

Under law (and medical ethics), there is a clear duty of care of the doctor towards their patient. Doctors are similarly held to give a very high standard of professional medical cafe and advice to their patients. Where medical negligence is concerned, the question to be asked and established is whether there was there a breach of that duty of care. Did the clinician act in such a way that was substandard, and that resulted in a breach of that duty?

Other factors to establish under law, and under a civil legal claim, are causation and remoteness. Remoteness is whether the damage received by the patient was so remote from the actions of the clinician that it could not have been foreseen – and legally is very straightforward to assess. Causation is when it is legally determined what factor or tractors were responsible for the personal injury. By contrast to remoteness, that is incredibly complex, and can go down to the minutiae of what happened. There are several different legal theories and tests to determine causation, each as intricate as the other.

Despite that, under UK personal injury law, there two major matters for the patient (as opposed to the lawyer) to be concerned with to determine whether they can make a legal claim against a negligent clinical. Firstly, the patient must have suffered from medical negligence within three years. Admittedly though, some illnesses (such as asbestos or other industrial disease) take along time to develop and show symptoms. As such, for those specific illnesses, the courts set aside (to an extent) that three year requirement; for most of those illnesses the claim must be made within three years of diagnosis instead.

In common with personal injury law, the other requirement is that the medical negligence was not your fault, but rather that of the clinician involved. In by far most cases of medical negligence, that is indeed the case, and as such that requirement is merely a legal formality.

There is a lengthy collection of case law which is in the patient’s favour when it comes to medical negligence. Many legal principles concerning medicine have come about with the patient’s best interests in mind, and safeguard and protect the patient from medical errors.

Although the patient is often suffering after medical negligence – it is very much the right of the patient to seek a legal remedy to their medical wrong. Additionally in most cases involving medical negligence, the injured patient can be awarded compensation. Although that will never replace ill health, or the mental anguish, compensation can go a long way. Many patients are upset, bewildered and angry after medical negligence, and desire an explanation and apology. As such, patients should not be afraid to seek a legal remedy to obtain justice, and to obtain just that apology and explanation.

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Europe, Human Rights, and Employee Surveillance

In a verdict that has attracted much criticism, the European Court of Human Rights (ECtHR) in Strasbourg earlier in January ruled that a company that read an employee’s Yahoo Messenger chats and messages sent during the time he was at work was acting within the law, and within its rights.

The case centred around a Romanian engineer, Bogdan Barbulescu, who had been using Yahoo Messenger on his work computer, during work hours. He had been using Yahoo Messenger for work contacts- but also had a second, private, Messenger account that he used to contact his family whilst at work. Having informed all staff that they were not allowed to send personal messages whilst at work, and having warned Mr Barbulescu in this regard previously, his employer had eventually taken the step of searching his work computer.

Whilst conducting their on-line search, the employer had read the messages on both the professional and the personal Messenger account. Mr Barbulescu was dismissed in 2007 for his breach of company policy. He took his former employer to court, claiming a breach of confidential correspondence and his right to private life under human rights law. Having lost his case in Romania’s domestic courts, he had appealed to the ECtHR.

In January, the Strasbourg court ruled against Mr Barbulescu. In their verdict, the judges fond that Mr Barbulecu had been in breach of company policies, and that his employer had every right to check a company provided device (the work computer). The firm also had every right to check on his activities whilst at work, and acted correctly when they examined his chat history, believing as they did that they were examining a work account only, Indeed, in their verdict, the ECtHR made little reference to the personal Yahoo Messenger account.

Further, as company policy in this regard had been clear to all employees, the ECtHR found that the engineering firm had acted proportionally and correctly, and that it was not “unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”.

The verdict now leaves an open door for employers who wish to snoop on employee’s computers, emails and communications whilst at work. However, aware of this risk, and of the potential of future breaches of civil liberties, the judges were at pains to state that company policies should be in place to prevent such overt and unfettered snooping of employees. Their verdict hinged on the facts of the case- that the device was a work – provided device, and that the management had been checking a work related account. However, the judges made little speciation as what their verdict would have been if the device had been a personal device.

Despite those caveats, there remains great concern regarding the verdict. Various bodies representing both employers and workers, and privacy campaigners all had a similar message that such snooping is still totally unethical in most cases, and for employers to avoid such snooping.

The European Trades Union Confederation released a statement saying that the verdict should not be seen as a “green light… to start snooping” on staff. In the UK, according to TUC General Secretary Frances O’Grady “Big Brother bosses do not get the best out of employees… Staff who are being snooped on are less productive and less healthy.” The Chartered Institute of Personnel and Development echoed this sentiment. Institute of Directors Director General Simon Walker was even clearer: “employees should not be subject to Stasi-style surveillance at work… We would strongly urge businesses not to read an employee’s personal messages, apart from in the most exceptional circumstances.”

Those bodies were joined by civil rights campaigners. Big Brother Watch said in response that “none of us should ever assume that what we do online during work hours or when using devices owned by our employer, such as computers, tablets or mobile phones, is private – but, equally, no employee should be in fear of being monitored by their boss.”

Whilst the verdict might now be in place, and a reference for employers when deciding whether to carry out such surveillance on their staff, employers should well remember that it is not binding.

The verdict was handed down by the European Court of Human Rights. Although its verdict is binding upon the nation named in the case (in this case, Romania), in most cases each nation interprets and applies ECtHR rulings as is deemed appropriate under domestic laws and customs. As such, the verdict is not legally binding in the UK- but is highly persuasive when used in court domestically, and is now a point of legal reference.

Indeed, in some ECtHR signatory nations, email and other surveillance of employees is already legal. As such, the judges were merely agreeing with Romanian domestic law in this regard, and upholding the employers’ legal rights to conduct such surveillance. The verdict makes it clear that it is not in breach of an employee’s human rights to be the subject of such surveillance, if the surveillance is in line with company policy, and national law (as it was in this case).

Although the case of Mr Barbulescu does seem to open the way for employers to snoop upon employees- that is in reality not the case. What the case does do is once again open and ignite the debate upon personal privacy, human rights, and personal and professional lives. That debate will not be ended as simply as Mr Barbulescu’s case was in Strasbourg.

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You Have The Right – To Be Searched Without Being Under Suspicion

In 2010, North London resident Mrs Roberts failed to pay her bus fare, and was caught by an inspector. She refused to give her real name, and held on to her bag to prevent being identified and fined. The inspector therefore called the police.

At that time, certain London police districts had given themselves extra stop and search powers, following the recent London Riots. Under  Section 60 of the Criminal Justice & Public Order Act (1994), a senior police officer can, acting upon intelligence that there is a credible risk of violence due to “offensive weapons,” and acting reasonably and proportionately to to the threat to public order and safety, grant officers the power to stop and search people for weapons such as knives in a very specific area, for no longer than 24 hours. Officers in that area during that time can stop and search those they believe may be carrying weapons, and do not necessarily need to believe that someone is acting suspiciously to stop them.

Following the London Riots, Superintendent Barclay in Haringey authorised such a Section 60 order. This was done in accordance with correct procedure and the law.

With the s60 order in force at that time and place, when PC Jacqui Reid investigated, the matter carried on as previously. Mrs Roberts refused to allow her bag or herself to be searched, and refused to give her real name to the police. With the police intelligence in mind, and with the additional s60 powers, PC Reid persisted. From PC Reid’s perspective, Mrs Roberts was acting suspiciously, and could potentially be carrying a weapon in an area known for weapons and gang violence. When Mrs Roberts sought to walk away from the questioning, she was arrested for her non cooperation.

A search at a police station revealed no weapon – but found bank cards that established her identity. Further suspicion was raised by bank cards on her person under other names. She was cautioned for handling stolen goods: but the caution was dropped when it was established that the bank cards were in her maiden name, and her son’s.

She was later released, and all the charges dropped. Mrs Roberts then proceeded to take the police to court, alleging a breach of human rights. The rights allegedly breached were Article 5, Article 8 and Article 14. The Article 5 challenge (right to liberty of person) was rejected, as was the Article 14 challenge. Article 14 concerns discrimination; however, the Court of Appeal found that there was no discrimination on the grounds of race in the stop and search (Mrs Roberts is of African – Caribbean ancestry). It was the Article 8 (right to private life) claim that was interfered with – but the question before the court was whether that was “in accordance with law” under the Police & Criminal Evidence Act (1984) (PACE) and the Criminal Justice & Public Order Act (1994). The police argued that the search was carried out in line with the law, and with the proportionate and legitimate aim of preventing crime.

That was the matter before the Supreme Court in December 2015. Lady Hale gave a comparatively brief verdict, the only speech given. In that, she sets out and defines the exact nature of the s60 powers, and admits that this is the first time that s60 has been brought before the Supreme Court. However, there are two other similar cases relating to police stop and search powers that are referred to. The first case is R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307, which concerned comparable powers in Sections 44 to 46 of the Terrorism Act (2000) – which subsequently was heard before the European Court of Human Rights in Strasbourg. The second case is Beghal v Director of Public Prosecutions [2015] UKSC49.

In Gillan, a comparable emergency and temporary stop and search power to s60 was under debate. The Supreme Court found that, in this case, that power had been exercised proportionately, legitimately, and without any personal bias or discrimination. The Strasbourg court, by comparison, held that the nature of the powers meant that there could be a risk of misuse and discrimination by police officers. Both cases debated what reasonable and suspicions grounds there could be to warrant such a search.

In Beghal, the powers under debate concerned Schedule 7 of the Terrorist Act (2000). Under those powers, relevant authorities can detail passengers at ports and airports for a limited time if there are reasonable grounds for suspicion. Here, the Supreme Court found that French citizen Sylvie Beghal (whose Algerian  husband had been arrested and jailed in France for terrorism offences). Once again, the legality and proportionality of the powers was under debate – as was the risk of discrimination, and how a reasonably suspicious person could be defined without risking discrimination. Again, the Supreme Court found that the Schedule 7 powers had been used properly, with the correct oversight, and without any breach to her human rights. By contrast, it must be noted that January 2016 saw the Court of Appeal ruling that a Schedule 7 stop of Brazilian journalist David Miranda was actually  in contravention of human rights.

Indeed, of such “suspicionless” stops, particularly under s60, Lady Hale had remarked earlier that

(3) It is now common ground that the power of “suspicionless”

stop and search which [s60] contains is an interference with the right to respect for

private life, protected by article 8 of the European Convention on Human Rights,

although perhaps not at the gravest end of such interferences. It is also common

ground that the power pursues one of the legitimate aims which is capable of

justifying such interferences under article 8(2), namely the prevention of disorder or

crime. The argument is about whether it is “in accordance with the law” as is also

required by article 8(2). In one sense, of course it is, because it is contained in an

Act of the United Kingdom Parliament. But the Convention concept of legality

entails more than mere compliance with the domestic law. It requires that the law be

compatible with the rule of law. This means that it must be sufficiently accessible

and foreseeable for the individual to regulate his conduct accordingly.

In a brief discussion and summary, Lady Hale finds in favour of the Metropolitan Police. Heavily using and citing those two cases, and with supporting police policy and procedure, she clearly finds that there was no breach of Article 8 regarding Mrs Roberts’ stop and search under s60.

Although Lady Hale admits that it is possible for such searches to be conducted improperly, or have a lack of legal basis – this was not one of those cases. Section 60, although there might be human rights issues with it, is perfectly in accordance with domestic human rights law.

Whilst finding so, Lady Hale does have this caveat:

(42) It cannot be too often stressed that, whatever the scope of the power in

question, it must be operated in a lawful manner. It is not enough simply to look at

the content of the power. It has to be read in conjunction with section 6(1) of the

Human Rights Act 1998, which makes it unlawful for a police officer to act in a

manner which is incompatible with the Convention rights of any individual. It has

also to be read in conjunction with the Equality Act 2010, which makes it unlawful

for a police officer to discriminate on racial grounds in the exercise of his powers.


There are countless times where the state has erred. Case law is full of challenges brought against the state – in recent years, predominantly on human rights grounds. Again and again the courts have had to device whether a course of action of the state had basis in law, or was conducted in line with the law. Statutory provisions and internal governmental department polices have been dissected in detail in open court to determine that.

If an error has been made by that State – then challenge it. Do not be afraid to take the state to court. The Court of Appeal and indeed the Supreme Court have held both the Executive and the State to account countless times. It is worth consulting with a lawyer if there is a strong belief or evidence that the State has acted improperly or unlawfully. It is possible in many such cases to make a judicial review or similar legal challenge to see whether the state had indeed acted in error.

In a democracy, such a challenge is a legal and moral right. Even the government and the state has to act in accordance with the law Parliament has enacted.

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Airport Stops & Media Freedom – David Miranda Before the Court of Appeal

Edward Snowden released classified information to the media in 2013. Among the global media outlets chosen was the British Guardian. One of those Guardian journalists involved in breaking the sorry, and in releasing up to thousands of classified security documents, was Glenn Greewald.

Later in 2013, his partner, Brazilian David Miranda, was stopped whilst entering the UK at Heathrow Airport. He was detained, and had his baggage and laptop searched. At the time, he was carrying material related to the Snowden revelations on an external hard drive, and in his laptop. Since then, Mr Miranda and civil liberties campaigners have seen this as a gross breach of human rights, and journalistic integrity. The case has preceded though the various British courts, with a three judge panel in the Court of Appeal finally finding in Mr Miranda favour early in January 2016.

Master of the Rolls Lord Dyson gave the verdict, along with Lord Justice Richard and Lord Justice Floyd. According to the three judges, essentially a key part of the Terrorism Act (2000), under which Mr Miranda was detained and searched, is incompatible with European human rights laws.

Mr Miranda was detained under Schedule 7 of the Act. Under the powers of Schedule 7, travellers can be questioned to ascertain whether they might be terrorists, or otherwise involved in terrorism. Whilst being detained, they have no right to legal advice, or to remain silent, and can he held for questioning for up to six hours.

Special Branch, and relevant authorities have had such powers since 2000. Since then, the number of stops has risen dramatically, to a peak of 85,000 in 2009/10. Whilst the Schedule 7 powers are predominantly unknown to the travelling public, there have long been concerns about the powers, and challenges raised to Schedule 7 stops. Further, there have been fears (justified or not) of officers profiling Muslims or other ethnic backgrounds, and gathering intelligence and information on such minorities with the searches.

Under Schedule 7, counter terror officers did not have to have any grounds to suspect the individual they were stopping, beyond the traditional “reasonable concern” that that is usual in legal matters. The definition of terrorism was also left slightly open to interpretation in Schedule 7. According to the Court of Appeal m, that definition can now be broadly defined as having some intent to cause a serious and significant threat to public safety, for example by deliberately endangering life.

The Court of Appeal admitted that the stop itself was perfectly legal, and in line with the relevant provisions of the Terrorism Act. However, Mr Miranda is a journalist. He had been stopped whilst in transit between Rio de Janeiro and Berlin after meeting the film maker Laira Poitras, who was another person involved in releasing the Snowden revelations. At that time, Mr Miranda had been carrying an estimated 60,000 classified UK government documents. He was due to hand these over to Mr Greenwald as part of the international media efforts regarding publishing Snowden’s information. The Guardian itself had paid for and arranged the trip and travel plans.

In this case, Lord Dyson found that the “exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful…But the stop power conferred by paragraph 2(1) of Schedule 7 is incompatible with Article 10 of the Convention in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.” The judges were referring to Article 10 of the European Convention on Human Rights (ECHR), which refers to Freedom Of Expression, and the right to receive and impart information and ideas.

Whilst legal, according to Lord Dyson, the stop procedures used by anti-terror police at ports and airports are not subject to safeguards and public scrutiny. With a lack of proper legal safeguards, the Schedule 7 powers are therefore considered as incompatible with human rights legislation.

The Court of Appeal was left with the unusual step of issuing a certificate of incompatibility in this matter. The certificate is an option judges have when they believe that the law is incompatible with the UK’s treaties and obligations regarding human rights.

In issuing the certificate, Lord Dyson and the judges stated that their “central concern is that disclosure of journalistic material [whether or not it involves the identification of a journalist’s sources] undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect Article 10 rights.” If journalists and their sources cannot be certain of their confidentiality then the very nature of a free and independent press – so vital in a democracy- is threatened.

The Home Office continues to state that the Schedule 7 stop was perfectly legal – which indeed it was. Civil rights campaigners hailed the verdict as a victory for civil liberties, and journalistic freedom- which it is also.

As the government presses for even more data information, and surveillance powers, the Court of Appeal verdict once again brings the mind the very pressing need for balance, Balance between freedom of expression, civil liberties, media freedom, and national security.

Above all, the case is a triumph for the law. The Court of Appeal upheld the fact that the stops themselves are perfectly legal- but merely carried out in a questionable manner. Such subtleties define the English legal system, as does a desire to uphold the law of the land, whatever it may be.

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