Saturday, July 19, 2014

The protection of freedom under the Human Rights Act: some illustrations

By Helen Wildbore, Research Officer, Human Rights Futures Project, LSE

Some examples of what difference the HRA has made.

Protest: Preventing demonstrators reaching a protest is unjustified intrusion into right to freedom of assembly.

The decision by the police to stop a coach of demonstrators reaching an anti-war demonstration in 2003 was challenged under the HRA. The police concluded that a breach of the peace was not imminent but decided to send the coaches home with a police escort to prevent a breach of the peace occurring at the demonstration when the passengers arrived. The court said that the police must take no more intrusive action than appeared necessary to prevent the breach of the peace.

The police had failed to discharge the burden of establishing that the actions they took were proportionate and constituted the least restriction necessary to the rights of freedom of expression (Article 10) and freedom of peaceful assembly (Article 11). It was wholly disproportionate to restrict a person’s exercise of her rights under Articles 10 and 11 because she was in the company of others, some of
whom might, at some time in the future, breach the peace.

The House of Lords referred to the “constitutional shift” brought about by the Human Rights Act, so that its no longer necessary to debate whether we have a right to freedom of assembly. (1)

Kettling to be used only as last resort.

To be lawful, crowd control measures by the police, such as kettling, must be resorted to in good faith, be proportionate and enforced for no longer than is reasonably necessary. (2)

The police must have a reasonable apprehension of an imminent breach of the peace, i.e. that it is “likely to happen”. Kettling had to be a last resort and no more intrusive than appeared necessary to avoid a descent into violence. This test of necessity would only be met in extreme and exceptional circumstances. Kettling a group of protesters at the G20 summit where the risk of a breach of the peace was not imminent, was an unlawful deprivation of liberty under Article 5.3

• Freedom of expression and the media.

Responsibly written articles on matters of public interest are protected

The common law defence of qualified privilege in libel cases includes a public interest defence for the media. (4)

Although this was developed in a case just before the HRA had come into force, but after it was passed, the court referred to the need for the common law to be developed and applied in a manner consistent with the right to freedom of expression (Article 10). The court listed ten matters to be taken into account in deciding whether the reporting was responsible.

More recently, this list has been held to be guidance, not hurdles, and the defence is to be applied in a flexible and practical manner. (5)

As a result, the media have much more freedom when reporting matters of public interest, where it may not be possible to subsequently prove the truth of the allegations, provided that they act responsibly and in the public interest.

Anonymity orders set aside to protect media’s right to free expression.

A group of media organisations successfully applied to set aside anonymity orders made in favour of individuals who were alleged to have links with Al-Qaeda and were suspected of facilitating acts of terrorism. The individuals had been designated under the Terrorism (United Nations Measures) Order 2006 and their assets were frozen.

The Supreme Court had to weigh the competing claims of the right to free expression of the press (Article 10) and the right to respect for private life of a relative of two of the individuals (Article 8), who would be identified if the anonymity orders were lifted. The court ruled that, in the circumstances, there was a powerful general public interest in identifying the relative which justified curtailment of his right to respect for private life. The anonymity orders were therefore set aside. (6)

Freedom of expression includes the right to receive information.

The right to freedom of expression (Article 10) includes not only the freedom to impart information and ideas but also to receive. The media have been granted access to a hearing in the Court of Protection, (7) when such hearings had previously been closed. (8)

•  Privacy: Damages awarded for unjustified intrusion into private life.

Where an invasion of private life is a matter of legitimate public interest because a public figure had previously lied about the matter, there will be a strong argument in favour of freedom of expression under Article 10 that will often defeat a claim of privacy under Article 8.

The publication of the fact that a public figure had taken drugs and was seeking treatment was necessary to set the record straight given her previous statements to the contrary, but the additional information published in the stories, including a photograph, was an unjustified intrusion into private life. Balancing the competing interests, the right to privacy under Article 8 outweighed the newspaper’s freedom of expression under Article 10 and damages were awarded for the breach. (9)

Retention of DNA and fingerprint evidence a breach of right to private life.

The blanket and indiscriminate retention of fingerprints, cellular samples and DNA profiles of people suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests. The court* ruled that it was a disproportionate interference with the right to respect for private life (Article 8) and could not be regarded as necessary in a democratic society. (10)

Following this decision at the European Court of Human Rights, two men have brought a case in the domestic courts claiming that the retention of their DNA and fingerprints is a breach of their right to respect for private life (Article 8). One was arrested but released without charge, the other was charged of an offence but acquitted at trial. Both men had their requests to destroy their samples refused by the police, as there were no ‘exceptional circumstances’ for destroying them, as stated in the Association of Chief Police Officers guidelines.

The court made a declaration under the HRA that those guidelines on retention of biometric data are unlawful because they are incompatible with Article 8. The court noted that it was the intention of the government to bring new legislation on this issue into force later this year. (11)

Local authority snooping on family is intrusion of private life.

A council’s surveillance of a mother and her children to determine whether they lived within a school catchment area was ruled unlawful and a breach of their right to respect for private life (Article 8). The Council used surveillance powers given to it by the Regulation of Investigatory Powers Act 2000 but a tribunal found their use of the powers was improper and unnecessary. (12)

Stop and search regime a breach of ECHR.

The stop and search powers under section 44 of the Terrorism Act 2000 are a breach of the right to respect for private life (Article 8). Under section 44 senior police officers can authorise the police to stop and search vehicles and people without the precondition of reasonable grounds of suspicion. Authorisations under section 44 covering the whole of Greater London have been made continuously for successive periods since section 44 came into force in February 2001.

The court* ruled that the use of coercive powers conferred by anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life. The powers of authorisation and confirmation as well as of stop and search under s44-45 were not in accordance with the law, in violation of Article 8.13.