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The anti-Islam activist Tommy Robinson has lost a libel case brought against him by a Syrian schoolboy who was filmed being attacked at school.

The English Defence League founder, whose real name is Stephen Yaxley-Lennon, was sued by Jamal Hijazi after an incident in a school playground in Huddersfield, West Yorkshire, in October 2018.

Shortly after the video of the incident went viral, Robinson falsely claimed in Facebook videos viewed by nearly 1 million people that Hijazi was "not innocent and he violently attacks young English girls in his school".

He also claimed Hijazi, now 18, "beat a girl black and blue" and "threatened to stab" another boy at his school, allegations the teenager denies.

In a high court judgment on Thursday, Mr Justice Matthew Nicklin said the consequences of Robinson's falsehoods had been "particularly severe" for Hijazi, to whom he awarded £100,000 in damages.

The judge said Robinson had made Hijazi out to be "a violent aggressor" in the playground incident when he was in fact the victim.

The activist used language "calculated to inflame the situation", Nicklin said, ultimately causing Hijazi to abandon his education and forcing his family to flee their home.

The teenager received death threats after becoming a target for the far right. Nicklin said the scars from the incident would "likely last for many years, if not a lifetime".

Hijazi's lawyers said they were delighted he had been "entirely vindicated". Francesca Flood of Burlingtons Legal said: "It took great courage for our client, Jamal Hijazi, to pursue his libel action against such a prominent far-right and anti-Islam activist as Stephen Yaxley-Lennon, better known as Tommy Robinson."

Robinson, who represented himself during the four-day trial, argued his comments were substantially true, claiming to have "uncovered dozens of accounts of aggressive, abusive and deceitful behaviour" by Hijazi.

However, the judge ruled Robinson had failed to prove each of his seven claims and that "in reality ... his evidence fell woefully short".

The judgment leaves Robinson, who has previously been financially supported by right-leaning groups in the US, facing a heavy monetary penalty at a time when he claims to be bankrupt.

Robinson said he was "gobsmacked" by the costs Hijazi's lawyers were claiming, which he said included £70,000 for taking witness statements. He added: "I've not got any money. I'm bankrupt. I've struggled hugely with my own issues these last 12 months ... I ain't got it."

Nicklin acknowledged there were "limits on what can be enforced against him" as a result of Robinson's bankruptcy, but ruled he should pay Hijazi's legal costs, which were not stated in court.

Robinson remains one of the UK's highest-profile rightwing campaigners despite being banned from mainstream social media and beset by legal problems. The Luton-born activist has previously received hundreds of thousands of pounds in donations from wealthy international backers as well as ordinary supporters.

The judge said he did not believe the filmed attack against Hijazi was racially motivated. Bailey McLaren, the boy seen attacking Hijazi in the clip, had been "catapulted into the maelstrom of a media storm" and was also a victim in the case, Nicklin said.

He added: "In such circumstances, it is hardly surprising if Bailey regarded the defendant as something of a saviour; someone who was prepared to help him in what must have been a low and very frightening point of his life. With the benefit of hindsight and maturity, Bailey may yet come to reflect on whether he has actually been helped by the defendant."

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Tommy Robinson loses libel case brought by Syrian schoolboy

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The anti-Islam activist Tommy Robinson has lost a libel case brought against him by a Syrian schoolboy who was filmed being attacked at school. The English Defence League founder, whose real name is Stephen Yaxley-Lennon, was sued by Jamal Hijazi after an incident in a school playground in Huddersfield, West Yorkshire, in October 2018.

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BBC Radio 4 - The Spark, Henry Marsh and terminal illness

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Helen Lewis interviews people offering solutions for our times. Neurosurgeon Henry Marsh discusses how the law should deal with terminal illness, as he comes to terms with his own. Helen Lewis returns with a new series of interviews with people offering radical solutions to the big problems we face, and explores how their personal experiences drive their work and thinking.

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New Specification Outline for Human Rights (2020-2022)

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New Specification Outline for Human Rights (2020-2022)

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Interference for affray and public order. 

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Interference for affray and public order. 

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Harrods was swarmed by hundreds of young people and teenagers sparking police to intervene and make four arrests.

The famous luxury department store in Knightsbridge, London, was overrun with huge crowds of people appearing to ignore social distancing rules.

Almost none were seen wearing masks as they crammed into the space outside the store and tried to enter it on on Saturday afternoon.

Police arrived at the scene shortly after 1pm and arrested four people on suspicion of affray, flouting Covid-19 rules and a public order offence.

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But photographs taken at around 5.30pm showed large crowds were still crammed into the street outside chatting and laughing, before they were dispersed.

Passersby took to Twitter to call out the scenes, with one writing 'Lockdown 3.0 is coming'.

Another uploaded a video of the large gathering, showing people mingling and some had plastic bottles in hand.

Save Night Clubs shared the video and wrote: 'This is happening outside Harrods and many other shops in London, people walking shoulder to shoulder, meanwhile thousands of people from the entertainment business are not able to work for over 1 year!'

It is not known why so many were attempting to enter the exclusive department store, but many appeared to be dressed for a night out.

It is believed some were intending to head to Harvey Nichols inside the store for drinks.

In a statement, Met Police said: 'Police were called at around 13:09hrs on Saturday, 5 December to reports of a large group of people attempting to enter a shop in Brompton Road, SW1.

'Four males were arrested in total - two for affray, one for breach of Covid regulations, and another for a public order offence and breach of Covid regulations. The crowd have since dispersed.'

Covent Garden in London's West End was also packed with crowds on Saturday night, who enjoyed live music and danced under Christmas decorations.

London is currently under tier two restrictions, meaning large gatherings are illegal and only six people from separate households are permitted to meet up outside.

Pubs, restaurants and bars are allowed to open as long as they can serve a 'substantial meal' with drinks and must close at 11pm.

But those from separate households are not allowed to meet up indoors and can only enjoy a meal at a pub or a restaurant if they sit outside.
Get in touch with our news team by emailing us at webnews@metro.co.uk.

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Hundreds of maskless young people 'try to storm Harrods'

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Huge crowds of people were seen gathering outside luxury department store Harrods, in Knightsbridge, London on Saturday.

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Read the articles below titled:
BBC News - Wales
Squatters take over Tunbridge Wells pub
Fracking protesters locked in
Lesbian protesters clash with police

For each news article answer the following questions:
1. Explain the nature of the 'assembly' (gathering).
2. Explain the reasons for interference by the police.
3. Was the interference justified?

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Freedom of speech is the right to say whatever you like about whatever you like, whenever you like, right? Wrong.

'Freedom of speech is the right to seek, receive and impart information and ideas of all kinds, by any means.'

Freedom of speech and the right to freedom of expression applies to ideas of all kinds including those that may be deeply offensive. But it comes with responsibilities and we believe it can be legitimately restricted.

Is freedom of speech a human right?

In the UK, Article 10 of the 1998 Human Rights Act protects our right to freedom of expression:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Are freedom of speech and freedom of expression the same thing? In the UK, freedom of speech is legally one part of the wider concept of freedom of expression.

Does freedom of speech have limits?

You might not expect us to say this, but in certain circumstances free speech and freedom of expression can be restricted.

Governments have an obligation to prohibit hate speech and incitement. These are dangerous. Restrictions can also be justified if they protect specific public interest or the rights and reputations of others.

Any restrictions on freedom of speech and freedom of expression must be set out in laws that must in turn be clear and concise so everyone can understand them.

People imposing the restrictions (whether they are governments, employers or anyone else) must be able to demonstrate the need for them, and they must be proportionate.

All of this has to be backed up by safeguards to stop the abuse of these restrictions and incorporate a proper appeals process.

...and when it can't

Restrictions that do not comply with all these conditions violate freedom of expression.
ANTI-PROTEST LAWS IN THE UK
We consider people put in prison solely for exercising their right to free speech to be prisoners of conscience.

Jabbar Savalan was imprisoned after calling for protests against the government on Facebook. We considered him a prisoner of conscience and campaigned for his release. Read Jabbar's story

Protest is not only a human right. It is a powerful way to change the world ✊🏽

People in power, afraid of change & afraid to be held accountable, want us to think that coming together to protect our rights doesn't work.

🧵 5 protests that show #PeoplePower can win human rights

- Amnesty UK (@AmnestyUK) August 23, 2023

Checks and balances

Specifics

Any restriction should be as specific as possible. It would be wrong to ban an entire website because of a problem with one page.

National security and public order

These terms must be precisely defined in law to prevent them being used as excuses for excessive restrictions.

Right now in the UK, the right to freedom of expression is under threat by anti-protest legislation in the UK.
RIGHT TO PROTEST IN THE UK
Morals

This is a very subjective area, but any restrictions must not be based on a single tradition or religion and must not discriminate against anyone living in a particular country.

Rights and reputations of others

Public officials should tolerate more criticism than private individuals. So defamation laws that stop legitimate criticism of a government or public official, violate the right to free speech.

Blasphemy

Protecting abstract concepts, religious beliefs or other beliefs or the sensibilities of people that believe them is not grounds for restricting freedom of speech.

Media and journalists

Journalists and bloggers face particular risks because of the work they do. Countries therefore have a responsibility to protect their right to freedom of speech. Restrictions on Newspapers, TV stations, etc can affect everyone's right to freedom of expression.

Whistleblowers

Government should never bring criminal proceedings against anyone who reveals information about human rights abuses.

Rights and responsibilities

Free speech is one of our most important rights and one of the most misunderstood.

Use your freedom of speech to speak out for those that are denied theirs. But use it responsibly: it is a powerful thing.

Learn more

Join our FREE three-week course on Freedom of Expression:
FREE COURSE

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What is free speech? One of the most important human rights explained.

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Is freedom of speech a right in the UK? Freedom of speech is one of most important and most misunderstood human rights. Find out why it's important and when it can be limited.

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Task: Read the two tutor2u articles uploaded below.

Separate an A4 paper into 4:
- overview of freedom of expression (no more than 5 billet point)
- restrictions set out in Article 10 (2)
- key cases
- relationship between Article 10 and Article 8

Use the information from the articles to record information on your A4 paper under the titles above.

This does not need to be in-depth and extensive information! Just some brief points to give you some base knowledge of A10 :)

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NEW!! Number 10 is discussing opting out of some key human rights. 

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NEW!! Number 10 is discussing opting out of some key human rights. 

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https://metro.co.uk/2020/09/13/boris-johnson-planning-to-withdraw-uk-from-key-human-rights-laws-13264068/?ito=facebook|social|metroukfacebook

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Complete the tasks below:
1. Watch the video in the link to get some context for Article 8 - right to private life. https://www.youtube.com/watch?v=7DzDu4BZUJE
2. Make a list of key words that appear in the video.
3. Using page 241, explain what is meant by 'respect' with regards to the states obligation under Article 8.
4. List the ways in which the state (UK) can restrict and interfere with the rights under Article 8.

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Read pages 229-233 of Book 2.  Answer the following questions:
1. Define 'equality of arms'.
2. What are the restrictions on time limits for cases such as personal injury claims and property claims to be brought to court?
3.  What happens if the right to a fair hearing is infringed?
4. Define the term 'McKenzie friend'.
5. When is a 'special advocate' allocated to a case? Are there any disadvantages to a special advocate?

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Read pages 217 - 222 of Book 2.
Answer the following questions:
1. How does Lord Hope define 'confinement'?
2. What was the purpose of the Terrorism Prevention and Investigation Measures?
3. What rights does Section 60 of PACE give to police officers?
4. Define the term 'kettling'
5. Why was there no breach of Article 5 found in the case of Austin (2009)?
6.  In the case of JE v DE (2006) there was found to be a breach of Article 5 and a deprivation of liberty.  Explain the reason for this decision.

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Useful videos to watch and gain understanding 

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Useful videos to watch and gain understanding 

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An 80-year-old woman has been found not guilty of murdering her terminally ill husband in a "mercy killing".

Mavis Eccleston was accused of giving her husband Dennis, 81, a potentially lethal dose of prescription medicine without his knowledge.

She told Stafford Crown Court they both intended to take their own lives. Jurors heard she also took an overdose but survived.

Mrs Eccleston was also cleared of manslaughter after a two-week trial.

Speaking outside court, one of the couple's three children Joy Munns called for a change in the law on assisted dying "so that dying people aren't forced to suffer, make plans in secret or ask loved ones to risk prosecution by helping them".

The court heard Mr and Mrs Eccleston had written a note saying they had decided to take their own lives, to explain their actions to their children.

But they were found by family members at their bungalow in Huntington, near Cannock in Staffordshire, on 19 February last year.

They were rushed to hospital where Mrs Eccleston was given an antidote for the drugs she had taken.

The court heard that after his bowel cancer was diagnosed as terminal, Mr Eccleston had made a decision to receive no further treatment except for medication for pain management and did not wish to be resuscitated by medical staff.

Mrs Eccleston told jurors her husband had kissed her hand after she agreed to "go with his wishes" to die.

She said he "knew full well" what medication they were taking and administered his overdose himself after she had fetched it from a cupboard at his request.

"It was an understanding between us. He had to tell me what I had got to do," she said.

The court heard after they had both taken medication, Mrs Eccleston kissed her husband on the head, pulled a cover over him and he said "good night darling" as she went to lie down on a sofa.

"The next thing I knew I was in hospital," she told the court.

Mrs Eccleston told jurors her husband had previously talked about travelling to Switzerland to end his life on his own terms.

Speaking outside court stood next to her mother, Ms Munns, 54, said the family were "grateful and relieved" that the jury recognised "our mum's love for our dad".

"But since dad's death our family has been through a terrible ordeal, waiting over 18 months for this court case, worrying that having already lost our dad to cancer, we might now see our mum imprisoned.

"If there had been an assisted dying law here in the UK our dad would have been able to have the choice to end his suffering, with medical support, and with his loved ones around him."

Sarah Wootton, chief executive of Dignity in Dying, said: "Because of the UK's outdated laws on assisted dying, Dennis felt his only option was to end his own life behind closed doors.

"Dennis should not have been forced to take such drastic actions and Mavis should never have been put in this agonising position."
Follow BBC West Midlands on Facebook, on Twitter, and sign up for local news updates direct to your phone.

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Wife, 80, cleared of 'mercy killing' murder

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An 80-year-old woman has been found not guilty of murdering her terminally ill husband in a "mercy killing". Mavis Eccleston was accused of giving her husband Dennis, 81, a potentially lethal dose of prescription medicine without his knowledge. She told Stafford Crown Court they both intended to take their own lives.

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When should the right to privacy not be protected?

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When should the right to privacy not be protected?

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This week, the Tate Modern won a landmark case on the issue of privacy. The case was brought by residents of a nearby tower block, who complained that visitors to the Tate Modern used the viewing platform to look into their apartments. This was exacerbated by the fact that the apartments had floor-to-ceiling glass windows.

Judge Mann argued in his summing up that the residents of the building who brought the case could in fact take simple and perfectly reasonable steps to avoid the need to shut the viewing platform of the museum, including installing net curtains, lowering existing blinds or putting privacy film on the glass windows. Additionally, the fact that the residents knew that the interior of their homes were viewable made it difficult to find in their favour. This has clear overlaps with the tort of private nuisance, where a pre-existing nuisance was known before owners or residents moved in.

You can read more about the case in this article here.

Of course, if the residents wanted true privacy, they could always do what Facebook founder Mark Zuckerberg did when he bought his property and make sure to buy the adjacent properties too so that nobody could spy on them!

During the Tate Modern case, similarities were drawn with the case that Sir Cliff Richard won against the BBC regarding invasion of privacy. Here, the BBC were judged to have gone beyond what was reasonably acceptable in their investigation and particularly their coverage of claims he had committed child sexual abuse. In the subsequent police investigation, there was insufficient evidence to bring a case against the singer, who had always maintained his innocence. Despite this, the BBC had sent a helicopter to film a raid on his house and to broadcast this to millions of viewers. Apart from potentially prejudicing an investigation, or putting thoughts into the mind of a future jury, the BBC had breached the singer's right to privacy under ECHR Article 8.

Judge Mann said of the BBC's breach of privacy in the Richard case "It did so in a serious way and also in a somewhat sensationalist way," he said. "I have rejected the BBC's case that it was justified in reporting as it did under its rights to freedom of expression and freedom of the press." In response, however, many legal commentators and media outlets have argued that this decision sets a dangerous precedent. In future, arrests might not be made public and criminals would more easily act unhindered.

You can read more about the Richard case here.
Exam Tip:
When exploring a scenario question containing privacy issues and freedom of the press, it is vital that you spend time considering the potential benefits and negative consequences of protecting each one. This can (and should) be done in advance of the exam. A good way to do this is to draw up a list of advantages and disadvantages of each, with a handful of cases, like the ones above, to illustrate the points you intend to make.

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When Should The Right To Privacy (Not) Be Protected? | Law | tutor2u

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This week, the Tate Modern won a landmark case on the issue of privacy. The case was brought by residents of a nearby tower block, who complained that visitors to the Tate Modern used the viewing platform to look into their apartments. This was exacerbated by the fact that the apartments had floor-to-ceiling glass windows.

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Does Article 8 protect the rights of all parents? 

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Does Article 8 protect the rights of all parents? 

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The right to respect for a private and family life ought, in principle, to be applied in the same way for all parents. However, as is often the case in law, there are times where this does not happen. In the following examples, we will see how this can be in the interests of justice but also where it could potentially be in breach of human rights.

Example 1:
A couple who are not able to conceive a child naturally decide that they will enlist the help of a surrogate mother. This is someone who will not be biologically related to the child, in terms of their DNA, but will just carry the child in her womb during pregnancy. In normal circumstances, the surrogate mother would transfer her status as a mother (as she is the one who gives birth) to the biological parents, once the child is born. The state allows this and the couple enjoy full parental rights without any interference from the state.

Example 2:
A woman who is not able to conceive a child naturally decides that she will adopt a child. The state allows this and the single mother enjoys full parental rights without any interference from the state.

A woman who is not able to conceive a child naturally decides that she will use a surrogate mother to carry her own biological child through pregnancy. Once the child is born, the state refuses to allow her full parental rights, preferring instead for those rights to remain with the surrogate, who is not biologically related to the child.

Clearly there is an issue here, in that parents who are in relationships have their rights protected, whereas single parents do not enjoy such protection. This is a breach of Article 8 and also Article 14 - the right to be free from discrimination.

As a result of cases such as the one above, Parliament passed the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, preventing the discrimination that occurs in this way in the future.

Question:
When, if at all, do you think the rights of parents to have children should be restricted? Is this something that should be decided by a court or by Parliament?

In Evans v UK (2007), a woman deciding to use her frozen embryos to have a child, after she had split up from her partner, who had asked for those embryos to be destroyed. The case rested upon whether or not the reproductive rights of the father ended once the egg had been fertilised. On Appeal, the court in Strasbourg decided against Ms Evans, arguing that the father's rights were still to be protected in cases such as these. In addition, the court argued that the decision did not breach Ms Evans' right to have a family, as "there is no rule of domestic law or practice to stop her from adopting a child or even giving birth to a child originally created in vitro from donated gametes". The court was only restricting the use of the embryos she had jointly created with her partner in this instance.

This was in contrast o the case of Samantha Jefferies, who in 2016 won the right to use embryos that she'd jointly created with her recently deceased husband.

Be able to demonstrate understanding of the possible interpretations of Article 8 from the standpoints of both the mother and the father in Evans v UK.

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Does Article 8 Protect The Rights Of All Parents Or Just Some? | Law | tutor2u

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The right to respect for a private and family life ought, in principle, to be applied in the same way for all parents. However, as is often the case in law, there are times where this does not happen.

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The Margin of Appreciation! What does this mean?! 

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The Margin of Appreciation! What does this mean?! 

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The phrase 'margin of appreciation' refers to the way in which the European Court of Human Rights (ECtHR) defers to the will of individual states, in specific circumstances. The reason for this is that there may be instances, where the ECtHR judges that national interests may reasonably come before the rights of individuals. This may occur in issues regarding national security, local government policy or moral matters such as euthanasia. The ECtHR recognises that nation states should not necessarily be sanctioned, simply because they exercised discretion in their interpretation of the law. This does not mean, however, that human rights law can be overridden by individual states.

You can read more at RightsInfo.org here.

Article 8 (2) states:

" There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 8 (2) looks, on the face of it, to be a sensible way to ensure that human rights law can be interpreted in order to get around problems in bringing offenders to justice, or at least to remedy civil wrongs. However, the disproportionate use of 8(2) can also be the cause of this very problem. Imagine an authoritarian government, who wish to silence their critics. They might try to use 8(2) to get around 'unhelpful' issues like the right to not be separated from their family, the right to a particular sexual orientation, or the right to not be spied on.
So how has the ECtHR dealt with cases where Article 8 has allegedly been restricted unlawfully? Buckley v UK (1997)
This case concerned Mrs Buckley, who wanted to reside in a caravan on her own land. The local authority, however, did not allow this, due to their planning laws regarding such issues. Buckley applied to the ECtHR on the grounds that her Article 8 rights had been breached. In this case, her "home" should not have been interfered with in an arbitrary way by the local council, simply because of planning decisions. The ECtHR decided against Buckley, on the grounds that although there was an interference with Buckley's home, it was within the "margin of appreciation" of the UK's planning laws.
A, B, C v Ireland (2011)
Here, two women traveled to the UK for abortions due to health and social problems that they suffered. The law in Ireland did not permit abortion, even in cases where the private lives of the mothers (and potentially the children) would be interfered with and be detrimental to their health and well-being. The ECtHR ruled against the women, on the grounds that a wide "margin of appreciation" allowed the state to decide which moral rules should be protected, even if it was in contradiction to laws in other, more liberal European states.
Pretty v UK (2002)
Diane Pretty suffered from Motor Neurone Disease and wished for her life to end at a time of her choosing. However, assisting someone's suicide is a criminal offence and Pretty didn't want her husband or anyone else to be punished for aiding her. She appealed to the ECtHR as she believed the law in England and Wales was in breach of Article 8, the right to a private and family life. Pretty argued that this included her right to decide on how her life should end. The ECtHR disagreed with Pretty and decided that the margin of appreciation in her case meant that the ECHR should defer to the UK Parliament.

Question:
Does the ECtHR's use of the margin of appreciation undermine the universal nature of human rights? Be able to demonstrate both sides of this debate, to score more highly in evaluative questions.)

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What Is The Margin Of Appreciation? | Law | tutor2u

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What is the "margin of appreciation"? The phrase 'margin of appreciation' refers to the way in which the European Court of Human Rights (ECtHR) defers to the will of individual states, in specific circumstances. The reason for this is that there may be instances, where the ECtHR judges that national interests may reasonably come before the rights of individuals.

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When should freedom of expression be restricted?

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When should freedom of expression be restricted?

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The existence of a free press is crucial to a functioning democracy. For this reason, it is often known as the Fourth Estate, alongside the more traditional branches of the Legislature, Executive and Judiciary. Without the ability to hold all three of these branches to account, there would be a real risk of tyranny and corruption. This can be seen in other countries, where members of the government have an influence over, or even control the news, enabling them to cover up news items that would genuinely be in the public interest

But when should the freedom of the press be restricted? As I've mentioned in other articles on the right to privacy (see here and here), the right to privacy is vital and should be protected unless there is a serious enough reason to restrict it. The question is though, where should the line be drawn?

Let's look at some cases that illustrate the extent to which freedom of expression should be restricted, regarding the press.
Observer and The Guardian v UK (1991)
A book called Spycatcher was written by a former MI5 officer called Peter Wright, who alleged in it that MI5 had been acting unlawfully for years. The Government took out a court order to prevent excerpts from the book being published by the newspapers, in the interests of national security. However, once the book had been published, the newspapers argues that the court order should no longer be in force, as the material was already in the public domain, therefore the newspapers reporting on it would no longer constitute a breach of national security. The ECtHR agreed and the publishing ban was lifted.
Animal Defenders International v UK (2013)
An animal rights group produced an advert promoting animal rights, to be broadcast on television. However, it was banned under the Communications Act 2003, as political advertising is severely restricted (and prohibited in most cases). the ECtHR decided against Animal Defenders International, who had argued that the ban breached Article 10. The Court argued that rather than it being a breach of freedom of expression, it actually encouraged it, by levelling the playing field for all political causes, regardless of their financial strength.
ES v Austria (2018)
An individual was fined by an Austrian court, when she made claims in a seminar that the fifty six year old prophet Mohamed had married one of his wives when she was only six and had sexual intercourse with her by the age of nine. The defendant argued that restricting her freedom of expression on this largely academic matter was a breach of Article 10, particularly when the claim about the prophet was based on extensive research. However, the ECtHR reasoned that making such a statement, could "stir up prejudice and put at risk religious peace". Therefore it was within the margin of appreciation for the Austrian court to impose the fine, in the interests of protecting the religious freedoms of others and also in the interests of national security. It should be noted, however, that this decision has been widely criticised as anti-blasphemy laws have often been the basis for attacks on freedom of expression in countries around the world. You can read more on the case here.
Exam Tip:
When discussing Article 10, the right to freedom of expression, you should pay particular attention to Article 10 (2), where it states the reasons why restrictions might reasonably be imposed. These include the reasons given in the above cases, but they also include: the protection of health or morals, the protection of the reputation of others ad preventing the disclosure of information given in confidence, amongst other reasons.

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When Should Freedom Of Expression Be Restricted? | Law | tutor2u

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Article 10, the right to freedom of expression, states that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

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Here, the offence of "stalking" was defined in law. This is where a course of conduct is undertaken by D, where he knows or ought to know that his conduct will cause harassment, alarm or distress. The rules on harassment were further extended to include harassment via letters, telephone calls and messages or online communications in the Malicious Communications Act 1998.
Copyright, Designs and Patents Act 1998
The person who takes a photograph usually has the rights to that photograph, unless the person who commissioned the photographno longer wants it to be published. This was seen in the case of Douglas V Hello! (2006) where the claimant argued that the rights to publish the photos taken had not been granted by them.
Data Protection Act 2018
Data-protection principles restricting the storage and processing of personal and sensitive data that must be complied with - based on GDPR (General Data Protection Regulations). Under the previous legislation, the DPA 1998, damages were awarded in Douglas v Hello! (2006) for a breach of DPA by publishing photographs against the will of the claimant.
Regulation of Investigatory Powers Act 2000
Covert surveillance, for example phone-tapping, is criminalised, unless reasonable steps have been taken by governments or employers to inform employees of the possibility of it happening. In Barbulescu v Romania (2017) https://www.echr.coe.int/Documents/Press_Q_A_Barbulescu_ENG.PDF (not a UK-based case), the claimant's emails were monitored by his employer, who then sacked him for using the email service for personal use. Mr Barbulescu knew that the emails would be monitored, but did not realise to what extent they would be monitored, or the nature of the emails monitored. The ECtHR held that there was a breach of Article 8 for that reason.
Police and Criminal Evidence (PACE) Act 1984
Police powers are often limited, regarding their legal authority to do such things as stop, search, arrest, detain and interrogate. This is especially so, if the searches are intimate. A breach of Article 8 was found by the ECtHR to have occurred in Wainwright v UK (2007), where a woman and her disabled son were strip-searched by prison officers whilst visiting relatives in prison in 1997 (even before the HRA 1998 came into force). Despite strip-searches being allowed as a necessary measure to protect security in prisons, it was deemed in this instance to be a step too far and therefore did breach the right to privacy.
Defamation Act 2013
Protects right to reputation, whilst attempting to balance privacy against freedom of expression.
Investigatory Powers Act 2016 (AKA the "Snooper's Charter")
New powers granted to the authorities to retain and intercept individual and bulk data, despite ruling of ECJ that bulk data retention infringes privacy unless strictly limited.
Exam Tip:
When explaining why there might be a breach of Article 8, or any other Article, try to mention how this rule is incorporated into UK law. For example, instead of writing "The police breached Article 8 because they interfered with Tom's right to privacy when they searched him", you could write "Tom's right to privacy under Article 8 was breached when the police ignored PACE guidance in conducting an intimate search, which was unnecessary, given that the circumstances were not serious enough".

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Key Statutes Regarding Article 8: The Right To Privacy | Law | tutor2u

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In order to adequately analyse the infringement of Article 8 rights, it is sometimes helpful to refer to statutes other than the Human Rights Act 1998. Below is a list of statutes, which contain elements of Article 8 rights that might be breached, legally or illegally, under different circumstances.

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However, it also does something else. It holds powerful people and organisations to account. It exposes hypocrisy of trusted public figures and institutions. It highlights new ways of understanding what has been seen as "true" for decades. Not only that, it also allows for creativity in artistic expression, which is a fundamental part of the human condition. Without the ability to freely say what you think (within certain parameters) there would not be any protection for those who wish to challenge unjust power structures or bring the rich and powerful to justice. In addition, it provides protection for people to share their political opinions, so long as they do not conflict with fundamental rights of others, such as the right to be free from discrimination (Article 14)

The exercise of freedom of expression must also, however, take into account a balancing of conflicting interests. This means that although newspapers, for example might be allowed to expose celebrity secrets, it must also balance rights to privacy (Article 8), or not interfere with the right to a fair trial (Article 6). Artists should be free to create art that inspires the viewer, listeners, etc. However, they must be careful not to incite hatred with what they have created, as that would not be protected under Article 10.

Below are some important examples of cases that demonstrate how Article 10 is applied in the courts and which show how different rights and freedoms have been balanced against each other.

D was a supporter of the far-right British National Party. He decided to display a poster in his window, containing an image of the burning Twin Towers and a message saying "Islam out of Britain - Protect the British People". He maintained that it was his right, under Article 10 to freely express this opinion. However, the ECtHR disagreed, arguing that since the message was aimed at all Muslims, that this was an attack on a religious group and so should not be allowed to be seen as protected free speech.

D was a book publisher who had bought the rights to a controversial book called The Little Red Schoolbook. The book contained advice to school children, which promoted drugs, sex and challenging authority. When police found out that he intended to publish the book, his house and office were raided and all copies of the books were confiscated. He was then prosecuted and fined. Under the law at the time, he was not protected by Article 10, as it was deemed that the corruption of health and morals was in conflict with his individual freedom of expression, with the Court deciding against publication on these grounds. Despite this however, public morality has changed over the years and the book was finally published in 2014.

Naomi Campbell, a supermodel, was photographed outside a drugs rehabilitation clinic, after public denials that she was a recovering drug addict. She brought a case against Mirror Group Newspapers Ltd, claiming that freedom of expression should not be allowed, as in this instance it conflicted with her right to privacy, under Article 8. The House of Lords, at appeal, decided in favour of Campbell, arguing that her expectation of a right to privacy (even in a public place) did outweigh freedom of expression in this case.
Exam Tip:
Make sure that when you are answering exam questions, that you draw parallels between these cases and the facts of the scenarios you will be given.

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How Free Is Our Freedom Of Expression? | Law | tutor2u

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Freedom of expression is fundamental to our rights as human beings and is essential for democracy to flourish. There are obvious examples where this statement might be seen as controversial, but this makes freedom of expression all the more important. Article 10 of the ECHR protects individuals' rights to hold opinions, receive information and communicate it to others.

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Question 1
Using case examples, discuss how the law enforces morality. (10 marks)

Question 2

Lord Justice Coleridge said in R v Instan 1893 “It would not be correct to say that every moral obligation involves a legal duty: but every legal duty is founded on a moral obligation.”

Discuss the extent to which this statement is true. (10 marks)

Question 3

In his essay on liberty, John Stuart Mill said “the only purpose for which power can be exercised over any member of a civilised community against his will is to prevent harm to others”.

In light of the above statement, discuss a least 2 other theorists’ views on law and morality.  (10 marks)

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Book 2 - Textbook pages for Law and Society 

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Book 2 - Textbook pages for Law and Society 

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Complete the booklet below as an introduction to 'Further Law'

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Task 1:  Read at least 2 articles from the links provided on the document below.  Answer the following questions for each article read:
1. Give a brief overview of the article content (no more than 100 words)
2. What is the view of the writer on the issue discussed?  Do they agree?  Do they highlight difficulties?
3. How does the article content impact the law and the justice system?

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Links for Law and Technology, Law and Society

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(Image: Martha Gwion)

A campaigner protesting against "the erasure of lesbians" had to be moved by police when they refused to get out of the way of the Swansea Pride march in the city centre.

Get the L Out are a group of lesbians opposing what they describes as "the increasingly anti-lesbian and misogynistic GBT movement and the erasure of lesbians".

Members believe lesbian rights are under attack by the trans movement and they are encouraging lesbians everywhere to leave the GBT and form their own independent movement.

They took part in the Swansea Pride march yesterday at around 11.15am, carrying banners which read "transactivism erases lesbians" and "lesbians don't have penises".

The incident between police and the campaign group...

But they claimed they were then confronted by police during the incident, which lasted a few minutes.

South Wales Police said one protester was moved from the parade's route, for safety reasons, but the protest was allowed to continue.

A statement from the group read: "We walked in front of the march but backwards so that the banners would be visible to the demonstrators including to the security staff and to the police.

"We did not stop walking or delay the parade.

"Immediately we were faced by police and security staff who physically stood in front of us."

They claimed they were repeatedly told to leave.

"We asked: 'Are lesbians not allowed on this march?' and got no answers.

"We asked why we were asked to leave, that we had a right to be here as it is a public place. We were told we were "spoiling" the parade.

"The police and security pressure intensified."

The statement added: "We kept marching backwards and felt threatened.

"One of the lesbians said: 'don't touch me - stand back'.

"The other lesbian was cornered by several officers and sat down.

"The police officers then grabbed the lesbian on the floor and removed her from the march to the side of the march.

"The whole episode was very quick, a few minutes in total.

"After having been removed we stood on the side of the march holding our banners and chanting pro-lesbian statements

"More police officers joined to stand in front of us."

Get The L Out said their research demonstrated that the trans movement "with the complicity of 'queer' LGBT politics was coercing lesbians to have sex with men who identify as women".

They stated that they "firmly condemn this vicious form of lesbophobia disguised as progress".

The group stand for the rights of lesbians to choose their sexual partners on the basis of their sex, not their "gender identity", and condemn any pressure on lesbians to accept so called "trans women" as potential sex partners and the penis as a female organ as "coercive and a manifestation of rape culture".

A photo capturing the incident with the police was shared widely on social media.

A South Wales Police statement read: "We're aware a photo from Swansea Pride has been shared. To clarify, two protesters on the parade's route were asked to move to the side of the road. A demonstrator who initially didn't do so was moved by officers to ensure everyone's safety.

"No arrests were made. The protesters were allowed to continue with their protest.

"The Swansea Pride event, which was policed entirely by volunteers from our South Wales Police Specials, was a fantastic success. As always, thank you for your continued support."

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Lesbian protesters in clash with police and security at Swansea Pride

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A campaigner protesting against "the erasure of lesbians" had to be moved by police when they refused to get out of the way of the Swansea Pride march in the city centre. Get the L Out are a group of lesbians opposing what they describes as "the increasingly anti-lesbian and misogynistic GBT movement and the erasure of lesbians".

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Dale Farm: 'They promised a peaceful eviction. This wasn't peaceful'

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Travellers describe how bailiffs and police arrived through barely-guarded back entrance to site, with violent clashes following

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Climate change protesters have blocked roads across central London sparking traffic disruption.

Members of campaign group Extinction Rebellion have also parked a boat at Oxford Circus, and blocked Marble Arch, as part of a global day of action.

Activists smashed the glass of the revolving doors of oil company Shell's London headquarters in Waterloo.

Police have advised people travelling into London to allow extra journey time.

Yen Chit Chong, from Extinction Rebellion in London, said: "This is our last best shot at survival."

Organisers claim protests are being held in over 80 cities across 33 countries.

Extinction Rebellion said protests would continue throughout the week "escalating the creative disruption across the capital day by day".

The group said it planned to "bring London to a standstill for up to two weeks", and wanted the government to take urgent action to tackle climate change.

In Parliament Square, protesters unfurled banners, held up placards and waved flags as speakers took to the stage.

Who are Extinction Rebellion?

Since its launch last year, members have shut bridges, poured buckets of fake blood outside Downing Street, blockaded the BBC and stripped semi-naked in Parliament.

It has three core demands: for the government to "tell the truth about climate change", reduce carbon emissions to zero by 2025, and create a citizens' assembly to oversee progress.

Controversially, the group is trying to get as many people arrested as possible.

One of the group's founders, Roger Hallam, believes that mass participation and civil disobedience maximise the chances of social change.

But critics say they cause unnecessary disruption and waste police time when forces are already overstretched.

By intentionally causing more than £6,000 damage at the Shell headquarters activists aim to get the case into crown court to put their case to a jury, the campaign said.

Protester Chay Harwood told the BBC: "We live in a very sick society at the moment. There's a lot of social issues and social ills that need curing.

"But at the moment the biggest threat we face is the threat of climate change."

The Met said it had "appropriate policing plans" in place for the demonstrations and officers from across the force would be used "to support the public order operation".

In November, activists blockaded the Department for Business, Energy & Industrial Strategy by chaining themselves together on the pavement, leading to 85 arrests.

At the scene
By Matthew Cannon, BBC News
The unusual sight of a pink yacht stands in the centre of Oxford Circus, surrounded by protesters holding aloft a sea of coloured flags.

The focus here is on the future of the planet - and there is a sense of urgency.

Some are wearing red to symbolise "the blood of dying species", one group wants to "save the bees", while a man dressed as a centaur holds a placard which says "climate change is not a myth ...unlike centaurs".

Two young women tell me they are not willing to have children due to their fears for the world they will be bringing them into.

Another man, who plans to protest through the night, says the protests will be peaceful but he is willing to be arrested.

"The more the authorities will get fed up with us the more it brings us to their attention," he said.

Organisers have encouraged people to set up camp in Hyde Park overnight into Monday - an offence under Royal Parks legislation.

A spokeswoman for The Royal Parks said Extinction Rebellion had not asked for permission to begin the protest in the park and that camping was not allowed.

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Climate change protesters have blocked roads across central London sparking traffic disruption. Members of campaign group Extinction Rebellion have also parked a boat at Oxford Circus, and blocked Marble Arch, as part of a global day of action. Activists smashed the glass of the revolving doors of oil company Shell's London headquarters in Waterloo.

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Article 11: Freedom of assembly and association

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Freedom of assembly and association protects your right to protest by holding meetings and demonstrations with other people. You also have the right to form and be part of a trade union and political party.

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Anti fracking protests North Yorkshire 2017

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Four anti-fracking protesters have laid in the road in front of a hydraulic fracturing site in North Yorkshire.

It is part of a series of protests taking place at the site at Kirby Misperton, where Third Energy was granted permission to frack in 2016.

The protesters have locked their arms into barrels made of concrete and metal and said they will remain there for at least 24 hours, police said.

Police officers are using saws to cut them free.
Read more about this and other stories from across Yorkshire
Supt Alisdair Dey said: "Our core tactic is to engage with people on all sides of the issue and ask them to work with us to make this a safe and peaceful protest.

"However, once the balance has tipped from peaceful protest to deliberate acts that are unlawful and cause unreasonable disruption to others, including companies going about their lawful business, then we need to take action.

"Whilst we would always wish to negotiate, specialist police teams are on site assessing the situation."

Supt Day said protesters had told officers they would be lying in the road for "24 hours or as long as it takes".

Third Energy has not received final consent to begin fracking but expects to start before the end of the year.

It began moving equipment on to the site on 19 September.

Police have arrested 12 protesters since then and charged nine with various offences including obstruction and assault of a police officer.

Another was arrested earlier on Monday.

Protesters have already lost a legal challenge against the decision to grant planning permission at the site.

They have also called on police to investigate whether protected species of bats are at the site, although Third Energy have said wildlife protection was addressed during the planning process.

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Four anti-fracking protesters have laid in the road in front of a hydraulic fracturing site in North Yorkshire. It is part of a series of protests taking place at the site at Kirby Misperton, where Third Energy was granted permission to frack in 2016.

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Guidance on how the police are trained to respond to protests. 

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Guidance on how the police are trained to respond to protests. 

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Squatters!

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(Image: Kent and Sussex Courier/Kent Live)

A former pub in Tunbridge Wells town centre has been taken over by squatters with people living nearby reporting seeing a tent and drug-taking in the garden.

Shopkeepers and neighbours have seen people crawling in and out first floor windows of the tatty Crystal Palace in Camden Road and shimmying down the traffic lights, with the latest sightings on Saturday and Sunday. (November 24 and 25)

Police have told Kent Live officers have been called out four times this year to deal with the break-ins and related criminal damage, with the latest attendance of three police officers on Saturday, November 10.

Katie Boyden, 23, of Goods Station Road, told Kent Live: "I walk past the Crystal Palace almost every day and it often makes me feel uneasy. I was walking home from the shops at around 3.30pm on Sunday afternoon (November 25) when I saw two people climb out of a first floor window and onto the flat roof.

"Then they sat on the traffic light pole and shimmied down to the pavement right as I was walking underneath.

It's a little bit worrying, knowing there are people inside a building which is meant to be securely boarded up. You have no idea what's going on in there."

Concerned members of the public also rang police in February, March and June but there were no arrests despite officers searching the area for the offenders.

One mum living near the grot spot who did not want to be named told us: "I've seen people taking drugs there. Police have been around a few times. In the summer they were sleeping in the garden, they had a tent.

"The last time I saw anyone was a few weeks ago. It is boarded up but there are still places they can get through. There's a ladder at the side. People have climbed over the wall at the back as well."

Richard Pinkerton, owner of World of Sewing, said his staff alerted police on November 10 after seeing three or four young men jumping out of the first floor front window and then on to the traffic lights to reach the pavement.

"It can be unnerving for people walking along as they are not expecting it. They saw it again the following Saturday but didn't report it. They had tried to call the security company number on the hoarding but it was closed at the weekend. It doesn't make sense to board up the downstairs windows and doors but not the tops windows," said Mr Pinkerton.

The pub closed down in 2014 after its reputation was hit hard by previous violence.

Owner Harvey and Son of Lewes was granted outline planning permission in August to demolish the site and replace it with a three-storey building for a shop or business and three flats along with a two flat building in the garden.

When Kent Live visited the site, the ground floor back door and windows had metal security plates across them but uppers did not. The front windows which face onto a flat roof and the traffic light were not secured. The side sash window was partially open, with a ladder underneath against the wall.

Read More

Crime in Tunbridge Wells

Workers in two other shops told us they had seen people climbing in and out of the windows, with one saying they had called the police after the incident on November 10.

"They sent police and it is an ongoing issue as far as I know," she said.

A spokesman for Harveys of Lewes told us: "The Crystal Palace ceased trading four years ago, a victim of the national pub economy.

There are no clear plans for the site at this present time. We have not been made aware of any recent incidents. The site is regularly inspected, and a site clearance is imminent."

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Squatters take over former pub in Tunbridge Wells town centre

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A former pub in Tunbridge Wells town centre has been taken over by squatters with people living nearby reporting seeing a tent and drug-taking in the garden. Shopkeepers and neighbours have seen people crawling in and out first floor windows of the tatty Crystal Palace in Camden Road and shimmying down the traffic lights, with the latest sightings on Saturday and Sunday.

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Illegal rave shut down!

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Hundreds of people had camped out on Betws common

Police say 36 arrests were made in connection with an illegal rave held in Carmarthenshire over the weekend.
Twenty-nine were for drug-related offences, four for for public order offences and three for drink-driving.

More than 300 people began camping at Betws Common, near Ammanford, on Saturday night, making their way up Betws mountain in convoys of vehicles.

On Tuesday morning, Dyfed-Powys Police said the gathering had broken up and no officers remained at the site.

Police said some people had been released on police bail, pending analysis of seized substances.

A further 15 to 20 people were also cautioned for possession of cannabis.

Police moved on people who had gathered for the event

Police moved in on Sunday to try to break up the event but decided to let it continue.

Inspector Tom Edwards of Dyfed Powys Police said: "They slipped in late on Saturday night. Of course, once they are encamped in a particular area, it's very difficult to get them out."

There was considerable anger from people living nearby who complained about the noise and disruption to traffic.

Carmarthenshire Councillor John Evans, who lives in Betws village, said he was concerned at the cost of cleaning up the mess left on the mountain.

"It was quite intimidating for people living in Betws, when you have scores of people descending on the village and walking up the mountain," he said.

"You had a situation where convoys of between seven and 10 vehicles were coming on the mountain 30 seconds apart.

"It must have been well-organised. People had come from the Netherlands, France and Germany."

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BBC NEWS | UK | Wales | South West Wales | Illegal weekend rave breaks up

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Hundreds of people had camped out on Betws common Police say 36 arrests were made in connection with an illegal rave held in Carmarthenshire over the weekend. Twenty-nine were for drug-related offences, four for for public order offences and three for drink-driving.

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Human rights barrister appointed media freedom envoy

High-flying Doughty Street Chambers barrister Amal Clooney has been appointed by the UK government as special envoy to the Foreign and Commonwealth Office.

In her latest role, the international human rights specialist will chair a panel of legal experts who will support countries to repeal "outdated and draconian laws" and "strengthen legal mechanisms" to protect journalists.

Nearly 100 journalists were killed, 348 detained and 60 taken hostage by non-state groups in 2018 alone, according to the UK government.

The Foreign Secretary, Jeremy Hunt, said the panel will examine legal and policy initiatives that states can adopt to improve media freedom. This includes:

* Offering advice to governments who want to strengthen legal mechanisms to improve media freedom.

* Supporting the repeal of outdated and draconian laws.

* Encouraging and supporting governments to help ensure existing laws and international obligations are enforced.

* Promoting best practice and model legislation to protect a vibrant free press.

Commenting on her appointment, Clooney, who along with the other experts will work on a pro-bono basis, said:

"I am honoured to have been appointed as the Foreign Secretary's Special Envoy on Media Freedom and to have been invited to chair the high level panel of legal experts."

She continued: "Through my legal work defending journalists I have seen first-hand the ways in which reporters are being targeted and imprisoned in an effort to silence them and prevent a free media."

Earlier this year, Legal Cheek reported that a mystery law student had forked out a reported $8,100 (£6,140) to have lunch with Clooney at Jean-Georges, a two-Michelin-star French restaurant in New York. The meal was understood to be one of the items up for sale as part of an annual fundraiser hosted by Columbia Law School, the Ivy League institution where Clooney has been a visiting professor since 2015.

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Doughty Street's Amal Clooney lands UK foreign office role - Legal Cheek

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Human rights barrister appointed media freedom envoy High-flying Doughty Street Chambers barrister Amal Clooney has been appointed by the UK government as special envoy to the Foreign and Commonwealth Office. In her latest role, the international human rights specialist will chair a panel of legal experts who will support countries to repeal "outdated and draconian laws" and "strengthen legal mechanisms" to protect journalists.

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Protesters have lost a legal fight against pre-emptive arrests made when some of them dressed as zombies in London during 2011's royal wedding.

The nine demonstrators were detained until after the Duke and Duchess of Cambridge kissed on the balcony at Buckingham Palace.

After eight years of legal hearings, they took their case to the European Court of Human Rights.

There, they were told there had been no breach of their right to liberty.

That court's ruling means police can preventatively detain people even if they have no specific intelligence linking the individual to crime.

The nine people who fought the case to the Strasbourg court were among 20 who were arrested, detained or searched before Prince William's wedding to Catherine Middleton.

Among them was a group taking part in a tongue-in-cheek "zombie wedding" in Soho. The event was two miles from the Westminster Abbey ceremony - and aimed to draw attention to cuts, including to public services, that would hit members of the LGBT community.

Organisers encouraged people to dress up for a "fun, theatrical" event that would make a serious point - but police said that one leaflet suggested that "maggot confetti" would be thrown.

Hannah Eiseman-Renyard, lead claimant in the case, said she had only joined the event to help film and report on it and she was astonished when officers arrested her in a Starbucks outlet.

She has never been involved in or accused of criminality and was freed without charge on the same day.

There was no evidence that anyone had any maggots - and Ms Eiseman-Renyard said the reference on a leaflet had obviously been written as a joke.

"I went out to report on a flash mob with lip stain dripping down my chin but ended up with handcuff marks on my wrists," she said.

"This is not the outcome we hoped for after eight years of a really long fight. In 2011 the arrests were both unjust and unlawful. Today they remain unjust."

Another claimant in the case, Brian Hicks, said he was searched for dangerous items while heading to the "Not the Royal Wedding" protest in Westminster. He was carrying a packet of biscuits, two phones and a comb.

Taken to a police station, he was released without charge after the main royal events had finished.

The European Court said it would not consider the lawfulness of the detentions because British judges had already looked at the balance between police duties to maintain the peace and the rights of those held.

The judgement was significantly influenced by a decision in an unrelated football hooligan case from Denmark, which concluded that police could detain people - and therefore interfere with their right to liberty - if they believed it would prevent someone getting involved in later disorder.

But Ms Eiseman-Renyard said: "This judgement now means that the police don't need a criminal reason to arrest someone and get them out of the way. The outcome of this case has very worrying implications for civil liberties."

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Protesters have lost a legal fight against pre-emptive arrests made when some of them dressed as zombies in London during 2011's royal wedding. The nine demonstrators were detained until after the Duke and Duchess of Cambridge kissed on the balcony at Buckingham Palace.

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Court of Session: Partners in Crime Have no 'Family Life' - UK Human Rights Blog

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O'Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28th October 2015 - read judgment The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service's refusal to allow them to visit each other in prison.

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In December 2015, the European Court of Human Rights, by 6 votes to 1, dismissed a Romanian national's appeal against his employer's decision to terminate his contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother.

Mr Barbulescu contended that his employer had breached his Article 8 right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right. The Court found that there had been no such violation because the monitoring of the account by his employer had been limited and proportionate.
Background facts
Mr Barbulescu's employers asked him to create a Yahoo Messenger account for responding to client enquiries and informed him that these communications had been monitored. The records showed that he had used the Internet for personal purposes, contrary to internal regulations. The employer's regulations explicitly prohibited all personal use of company facilities, including computers and Internet access. The employer had accessed the Yahoo Messenger account in the belief that it had contained professional messages.

Mr Barbulescu maintained in writing that he had only used the account for professional purposes. The employer produced a transcript of his communications on Yahoo Messenger and it was not disputed that some messages contained sensitive personal data. Mr Barbulescu notified his employer that they had violated his correspondence and were accountable under the Criminal Code.

Mr Barbulescu's employment was terminated in August 2007 for breach of the company's internal regulations which specified that computers were not to be used for personal purposes. Mr Barbulescu challenged his employer's decision on the basis that it was null and void since, by accessing his communications, his employer had violated his right to correspondence.
The domestic courts' decisions
The Bucharest county court found that the employer had complied with Labour Code dismissal proceedings and Mr Barbulsecu had been informed of the employer's regulations that prohibited personal use of company resources. The county court found that monitoring had not affected the validity of the disciplinary proceedings. Mr Barbulsecu appealed this decision contending that his Article 8 right protections extended to email communications in addition to instant messaging.

The Bucharest Court of Appeal ruled that the employers conduct had been reasonable and the monitoring of Mr Barbulsecu's communications had been the only method of establishing if there had been a breach of the company's internal regulations.
Relevant law
The European Court of Human Rights was concerned primarily with the following legislation: - the Data Protection Convention (1981 Council of Europe Convention for the protection of the individual with regard to automatic processing of personal data), Articles 3,5 and 8. See EU directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The cases below were referred to in the Court's judgment: - Halford v the United Kingdom (25 June 1997), which concerned an office landline designated for personal use. See also the more recent case of Copland v the United Kingdom (no. 62617/00, ECHR 2007 - I) where personal use was also allowed but surveillance was used to determine whether there was "excessive use".
The Court's Decision
The Strasbourg Court considered the Halford and Copland cases which decided that telephone calls, emails sent from work and information derived from Internet usage are prima facie covered by the notions of "private life" and "correspondence" for purposes of Article 8. The ruling in Copland suggested that in the absence of a warning regarding monitoring of these communications, the applicant had a reasonable expectation as to the privacy of those communications and this same expectation extended to emails and Internet usage.

The first question the Court asked was whether Mr Barbulsecu had a reasonable expectation of privacy when communicating using the Yahoo Messenger account that he had registered at his employer's request. The Court distinguished the Halford and Copland cases on the basis that they accepted or at least tolerated personal use of the telephone. The Court highlighted that the complaint regarding the Article 8 violation was being raised in relation to labour law proceedings in order to prove the nullity of the employer's decision. The Court found that the complaint was therefore limited to monitoring within the disciplinary proceedings framework and not related to the content nor the disclosure of communications.

The second question posed by the Court was whether, in view of the general prohibition imposed by his employer, Mr Barbulsecu retained a reasonable expectation that his communications would not be monitored. Reference was made to Articles 5 and 8 of the Data Protection Convention and the fact that the parties disputed whether prior notice was provided. The Court accepted that there was not a straightforward answer to this disputed fact and agreed that if no warning was provided then Mr Barbulsecu had a reasonable expectation of privacy.

The Court aimed to strike a fair balance between the competing interests of the parties by asking the third question: whether the State, in the context of its positive obligations under Article 8, struck a fair balance between the Mr Barbulsecu's right to respect for his private life and correspondence and his employer's interests. Given the disciplinary context of the complaint, the Court found that the employer had acted within its disciplinary powers under the Labour Code by only accessing the account on the assumption that the information related to professional activities.

The transcript of the communications was not given much weight by the Court which found that the content "was not a decisive element in domestic court's findings" (paragraph 58). The Court considered that it was not unreasonable for an employer to want to verify that their employees were completing their professional tasks during working hours (paragraph 59). The monitoring was held to have been limited in scope and proportionate because only the Yahoo Messenger accounts had been accessed. Finally, the Court was not convinced by Mr Barbulsecu's explanation of why the account was used for personal purposes (he maintained it was because mobile phone prices were high and work demand was low at the relevant time).
Dissenting opinion
The dissenting opinion provided by Judge Pinto de Albuquerque acknowledges the argument that Mr Barbulsecu's Article 8 rights have been interfered with but disagrees with with conclusion of the majority of the Court that there was no violation. The judge is of the opinion that crucial factual features of the case have been overlooked. Judge Pinto de Albuquerque emphasises that the right to freedom of expression protected by ECHR Article 10 is engaged and that both Article 8 and Article 10 rights conflict with the rights and freedoms of others in this case.

The judge highlighted that Internet surveillance was not at the employer's discretion and the employer's right to interfere with an employee's communication was not unrestricted. In terms of the level of protection afforded by the Convention principle regarding Internet communications, the dissenting opinion considered that the protection afforded to the communication was not lowered because

(a) the communication occurred during working hours

(b) it took place in the employment context,

(c) it had an impact on business activities, or

(d) it affected employee performance.

The judge draws the following principle from the international legal framework:

Any processing of personal data for the purposes... of breach of contractual obligations ...must be regulated either by law, collective agreement, or contract. (Paragraph 9 of the transcript)

The existence of a Labour Code was not sufficient in the dissenting judge's view. A specific, transparent set of rules including a comprehensive Internet usage policy in the workplace was required rather than a blanket ban on personal communication. Further, Judge Albuquerque contended that employees must be

(a) made aware of the Internet usage policy,

(b) notified personally, and

(c) consent explicitly (paragraph 12, page 23).

The Internet usage policy itself should be governed by the principles of necessity and proportionality and only targeted surveillance based on well founded suspicions is admissible. In relation to the Court's second question above, the dissenting judge was not satisfied that the Government had discharged their burden of proving that Mr Barbulescu had been notified of the Internet surveillance policy. The notice provided was not signed by the employee and, even if signed, was not sufficient to justify his termination especially when it was not proven that Mr Barbulescu had caused actual damage to his employer. Alberquerque also highlighted the unnecessary interference with Mr Barbulescu's rights by the employer in failing to ensure that the transcript was restricted to the disciplinary proceedings.
Comment
It would seem that the dissenting judgment focuses in on certain gaps in the Court's consideration of the second question of whether Mr Barbulescu had a reasonable expectation that his communications wouldn't be monitored. There was a clear dispute about notification and the Court seems to have proceeded on the basis that a general warning from the employer was sufficient. Given the wide ranging implications regarding the use of personal Internet communications by others in the employment context, one would think that a more specific and considered warning and notification procedure would be required.

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Surveillance of Internet usage in the workplace - UK Human Rights Blog

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Barbulescu v Romania, 12 January 2016 - read judgment In December 2015, the European Court of Human Rights, by 6 votes to 1, dismissed a Romanian national's appeal against his employer's decision to terminate his contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother.

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Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 - read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be "institutionally inappropriate" for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not "institutionally appropriate" to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.

In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.

The Court concluded - with an interesting dissent from Charles J - that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
Reasoning behind the decision
Both the House of Commons and the House of Lords had debated the matter in the context of bills proposing a relaxation of the strict application of the Suicide Act's prohibition on assisted dying. So Parliament had decided, at least for the moment, not to provide for legislative exceptions to that prohibition. The policy of the DPP had also been subject to Parliamentary scrutiny and debate. Furthermore, the Strasbourg Court had ruled that the question fell within the margin of appreciation of the State parties to the Convention. Whilst the courts had the jurisdiction (recognised in Nicklinson) to issue a declaration of incompatibility in such circumstances, even where Parliament had struck the balance for itself, it also recognised that Parliament was better placed to resolve "this very difficult moral issue.'

The issue was likely to remain subject to continued political attention, just as it remained a matter of intense public debate and controversy. Despite Parliament's full investigation and consideration, it had been unable to coalesce around a change in the law which would command popular acceptance. Furthermore, Parliament was not required to confront the issue to the extent that it could not leave the law unchanged. In both Pretty (2002) 35 EHRR 1 and Nicklinson the collective view was that

unless Parliament devised a scheme which admitted of exceptions to section 2(1) the incompatibility would persist. Both Lady Hale and Lord Kerr recognised that Parliament might take a different view and decline to change the law, as the Human Rights Act 1998 allows.

Furthermore, Lord Neuberger in Nicklinson expressly left open the possibility that a declaration of incompatibility would not be the necessary consequence of Parliament leaving the law unchanged. Overall, Parliament had done precisely what the Supreme Court had suggested was necessary. Having done so, it remained institutionally inappropriate for a court to make a declaration of incompatibility. In the mean time,

the settled position of both Government and official opposition is that any change in the law must await a private member's bill which commands support in both houses. All current indications are that such a bill would struggle to pass. Whatever the position in the courts any change in the law seems unlikely in the foreseeable future.

Charles J's dissent
Charles J thought the court should have calibrated the question differently. The court should have asked itself whether the nine-judge conclusion in Nicklinson precluded any possibility of Mr Conway's request for judicial review proceeding. In his view, it did not.

It was at least arguable that the majority of the relevant reasoning in Nicklinson was that, at some time and in some circumstances, it would be institutionally appropriate for the court to entertain an application for a declaration that s.2 was incompatible, notwithstanding the common view that Parliament was the preferable forum for deciding the issues.

even taking the reasoning of all four [of the judges in Nicklinson] as being against the grant of permission they do not constitute a majority on this issue.

...the issue on permission is whether in light of what has happened since the decision in Nicklinson it is arguable that in the circumstances of this case, and so now, it is institutionally appropriate for the court to entertain such an application.

In other words, none of them said in so many words that a consideration by Parliament of the Assisted Dying Bill, or a decision by Parliament to continue a blanket ban would be enough to exclude the court from considering whether s. 2 of the Suicide Act 1961 was compatible with the right to autonomy under the Convention.

the qualitative element of [their] reasoning linked to the knowledge that the Assisted Dying Bill was then before Parliament makes it arguable that the Supreme Court in Nicklinson decided that, without any breach of Article 9 of the Bill of Rights, the court could in the future consider what Parliament had done and conclude that [this] would not be enough to exclude its consideration [of compatibility].

Charles J has recently dealt quite directly with this death-with-dignity question in the Court of Protection case Briggs v Briggs. Here he found that it was entirely within the court's remit to make a decision on behalf of an individual as to what his best interests were. He ruled that a patient in a minimally conscious state should be allowed to refuse consent for the continuation of his clinically assisted nutrition and hydration. The "strong presumption" in favour of continuing life-sustaining treatment for a life that had value was not absolute and had to be weighed against the principle of self-determination. In that case, self-determination won.

As Sarah Jane Ewart mentions in her forthcoming roundup, Mr Conway plans to appeal the decision, supported by charity Dignity in Dying, and a crowd-funding page which has raised over £75,000 towards his legal fees.
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Judges once again avoid right to die issue - UK Human Rights Blog

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Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 - read judgment Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961.

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R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin), Spencer J, 01 March 2019, judgement here

The government's 'hostile environment' policy took a hit in a High Court judgement on Friday. Spencer J declared the "right to rent" scheme, laid out in sections 20-37 of the Immigration Act 2014, incompatible with the European Convention on Human Rights (ECHR). He also declared that a decision by the Secretary of State for the Home Department to roll out the scheme in devolved territories without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.
Background
The case challenged an element of the government's 'hostile environment' immigration policy, which was recently rebranded the "compliant environment" following criticism.

The sections of the Act relevant to this case contained the provisions of the controversial "right to rent" scheme. This required private landlords to check the immigration status of tenants and potential tenants. Knowingly leasing a property to a disqualified person became a criminal offence, punishable by up to 5 years' imprisonment, an unlimited fine, or both.

This claim was brought by the Joint Council for the Welfare of Immigrants ( JCWI) a small charity seeking to ensure that "immigration law and policy are based on sound evidence, promote the rule of law and are underpinned by respect for human rights and human dignity." They were supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (RLA).

JCWI, by way of judicial review, sought:

1. A declaration that the scheme was incompatible with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) ECHR; and

2. either (i) an order quashing the defendant's decision to extend the Scheme to the rest of the UK, or (ii) a declaration that such a decision would be irrational and in breach of s.149 Equality Act 2010.

Ground 1: Declaration of Incompatibility
In relation to the declaration of incompatibility, the claimant was required to show that:

1. the case came within the ambit of Articles 8 and 14 of the ECHR;

2. the legislation was, in fact, discriminatory;

3. the government was responsible for discrimination by landlords;

4. the legislation a disproportionate means of controlling immigration; and

5. the legislation was incapable of being applied in a non-discriminatory way.

Spencer J found the question of ambit to "be the most difficult issue for decision" [62]. The defendant distinguished between one's actual home (protected by Article 8) and the right to "a" home (which is not protected). All parties agreed on this issue. Nevertheless, Spencer J found that the Article does protect one's right to

seek to obtain a home for themselves and their family even if they are eventually unsuccessful, and the playing field should be even for everyone in the market for housing, irrespective of their race and nationality. [68]

Spencer J had little difficulty finding that the scheme was, in fact, indirectly discriminatory. He noted the consistency of evidence from JCWI, Shelter, Crisis, the RLA and a report by the Independent Chief Inspector of Borders and Immigration. 42% of landlords reported that they were now less likely to consider letting to someone without a British passport; and 49% of landlords reported that they were now less likely to consider letting to someone who had permission to stay in the UK for a limited time period. He was willing to take two small steps from the evidence to the conclusion

not only that landlords are discriminating against potential tenants on grounds of nationality and ethnicity but also that they are doing so because of the Scheme. [93]

The defendant argued that, regardless of the above, the government could not be responsible for voluntary intervention of third party landlords acting independently and inconsistently with the requirements of the legislation, and the codes and guidance issued under it. This held little sway with Spencer J, given his finding that the legislation

does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so. [105]

The next question was whether the scheme could be justified as striking a fair balance between the benefits of controlling immigration and the disbenefits of restricting the relevant convention rights. On such matters the State is entitled to a wide margin of appreciation ( SAS v France [2015] 60 EHRR 11).

Immigration is a volatile political issue, and the Council of Europe has reached no consensus on what constitutes an acceptable means of controlling it. As such, the defendant relied on the European Court of Human Rights' reluctance to interfere.

This, however, did not dissuade Spencer J's emphatic finding that "the Government has not justified this measure nor, indeed, come close to doing so" [124]. It was considered particularly relevant that, in proposing the legislation, discrimination was not acknowledged as a "cost" necessary in order to achieve the aims. In fact, measures were put in place to avoid discrimination.

Given that such measures had failed, Spencer J suggested the Government might welcome a declaration of incompatibility as an opportunity to

re-think its strategy and see how the same aims can be achieved without the unwanted and unwelcome effect of discrimination. [122]

Finally, the courts' power to make a declaration of incompatibility pursuant to Section 4 of the Human Rights Act 1998 is not generally exercised unless legislation is incapable of being applied compatibly with Convention rights ( R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073). This was no barrier to Spencer J, who ruled that

any scheme of this kind will inexorably lead landlords down the path of discrimination and operate in a way which is incompatible with Article 14 ECHR. [127]

Therefore, a declaration of incompatibility was granted.
Ground 2: Declaration of Irrationality
In relation to whether to grant a quashing order or issue a declaration of irrationality in relation to any decision by the government to extend the Scheme to the rest of the UK, Spencer J's deliberations were markedly more brief.

A quashing order was deemed "inapplicable and inappropriate" [129] in the absence of an actual decision by the defendant to extend the Scheme to the devolved territories. However, Spencer J did consider that "no reasonable Home Secretary could decide to extend the Scheme further without first securing evidence to dispel the evidence garnered by the Claimant and the interested parties" [131].

Considering that the Government had expressed a "clear intention" to extend the Scheme, it was considered appropriate for the court to make a declaration that so-doing would be "irrational and a breach of Section 149 of the Equality Act 2010". [133]
Reception and Possible Appeal
The ruling has sparked controversy since its publication last Friday. Labour politicians Sadiq Khan and David Lammy celebrated what they considered to be a "damning indictment" by the court of the scheme, and journalists have gone as far as announcing "the end for the hostile environment."

The judgment is an important victory, understandably welcomed by human rights groups fighting "hostile environment" policies. However, celebrations may be premature; a Home Office spokesperson has expressed the government's disappointment, and nodded to the right to appeal.

From the opening, Spencer J's judgement is emphatic, bordering on enthusiastic, and suggests sympathy for the claimant's cause and hostility to government policy. This support was critical to the claimants, whose success depended on favourable findings on each and every issue in ground 1. Any one of these affirmations, some of which required considerable flexibility from Spencer J, could still be reversed on appeal.

Oxford Professor Richard Ekins, writing for The Spectator, called the "incredible" judgement "sketchy and implausible," labelling it a "travesty" that "goes beyond settled law." He alludes to the constitutional problems posed by a Human Rights framework that invites or requires the judiciary to stray into the political fray. According to Ekins, there is "a very strong case for this ruling to be overturned on appeal" and appellate courts would be "wise to reverse."

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'Right to rent' scheme causes landlords to discriminate, rules High Court - UK Human Rights Blog

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Samuel March is a paralegal and is due to start the Bar Professional Training Course later this year. R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin), Spencer J, 01 March 2019, judgement here The government's 'hostile environment' policy took a hit in a ...

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The BBC found itself in the midst of controversy last week after it refused to include advice about abortion as part of its advice service because it believed it was a "contentious issue".
The information on accessing terminations in the UK, and what those procedures entail, should have featured as part of the broadcaster's Action Line following an episode of Call The Midwife on 3 February that featured a character dying from a backstreet abortion.

However, the BBC's decision, originally intended so the "impartial" organisation did not "take a particular stance", was widely criticised.

Not least because abortion comes under reproductive rights, recognised as human rights not just by the European Court of Human Rights, but also by the United Nations (further information on this below).

The broadcaster has since reneged, and included a link to NHS guidance on abortion via its website in all UK nations bar Northern Ireland, where having an abortion still can still carry a potential sentence of lifelong imprisonment under the Offences Against the Person Act 1861 (OAPA).

In a statement on Sunday, a spokesperson for the BBC said: "Our original letter, in response to a complaint on this issue, didn't characterise our position correctly, but we have updated the website to provide a link now."

Even so, the apparent lapse of judgement continues to be countered and critiqued, not least by Government ministers and reproductive rights services.

'At The Expense Of Health, Welfare And Human Rights Of Women'

According to the Sunday Times, Women and Equalities Minister, Penny Mordaunt and Health Minister, Jackie Doyle-Price, wrote to the BBC to complain about its choice.

Nearly 100 MPs also signed a letter sent to BBC director general Lord Hall criticising the decision to "withhold information about women's reproductive healthcare services which have been legal and have been part of the NHS for over 50 years".

The letter reads: "By citing an issue as 'contentious', it [appears] any regressive and vocal minority could exercise a veto, and effective editorial control, over BBC content - at the expense of health, welfare and human rights of women in often the most vulnerable position."

The BBC is in effect 'supporting one side' by treating abortion as different to all the other medical procedures [it] chooses to include.

Royal College of Obstetricians and Gynaecologists

Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists also expressed its concern in a letter.

It wrote that abortion is a "routine part of NHS-funded healthcare" that is provided by doctors, nurses and midwives in England, Scotland and Wales every day.

"The BBC is in effect 'supporting one side' by treating abortion as different to all the other medical procedures [it] chooses to include," it read.

There is also some praise for the BBC's U-turn on its decision.

A protest in Ireland over the 8th Amendment.

Speaking to RightsInfo, a spokesperson for the British Pregnancy Advisory Service (BPAS) said: "We are very pleased that the BBC has now recognised that refusing to provide information about a medical procedure that one in three women will undergo in their lifetime, was completely the wrong decision to take. In doing so, they were taking a political stance on a healthcare issue, and we welcome this reversal.

"The outpouring of support from the public, MPs, and government ministers has made it abundantly clear that abortion is not contentious, and that access to abortion care and information is not just accepted in our society, it is expected."

What Is An Abortion?

Also known as a termination, an abortion it is the medical process of ending a pregnancy so that it doesn't result in the birth of a baby.

This is achieved by taking medication or by undertaking a minor surgical procedure.

The decision to undergo an abortion is an important and often difficult one which requires support, both physically and mentally, for any woman who experiences the procedure.

According to the NHS, one in three women will have an abortion during their lifetime.

Is Abortion Legal In the UK?

Partially: in England, Scotland and Wales, women can't access abortion as easily as they can in the (newly legal) Republic of Ireland and in much of Europe.

Image of campaign badges from 1970/ Commons Wikimedia

Under the Abortion Act 1967, women are granted abortions only in certain circumstances; circumstances which must be approved by two separate doctors before they can have access to a legal and safe termination.

There are five categories under which abortion in England, Scotland and Wales is permissible.

This includes where the mother's life is in danger (Category A) and foetal abnormalities (Category E).

There is also Category C, an exemption that allows termination if the mother can prove that the pregnancy and childbirth would damage her mental health. A huge 98 per cent of all abortions are permitted under this category.

Campaigners for reproductive rights want the law, which is now over 50 years old and was intended only as interim legislation to negate the OAPA 1861 before a more comprehensive law could be introduced, to be updated to allow women to be able to have an abortion when they require one without having to seek approval.

Why Are Abortion Rights Not Extended To Northern Ireland?

In Northern Ireland, women can still face imprisonment for having an abortion. Whilst Northern Irish women can now access free abortions in England under a recent change to the law and can apply for a hardship fund to allow for travel and accommodation required when making the trip, they will receive no physical or mental support for their experience upon their return to Northern Ireland.

Not only does this risk the health of the expectant mother by forcing her to travel, often alone, at a particularly vulnerable time, but the financial implications of last-minute flights and accommodation create a class bias for women that require an abortion within Northern Ireland.

With many politicians and women's rights activists demanding for decades that safe and legal access to abortions is a human right that should be afforded equally to all citizens of the UK, Stella Creasy, Labour MP for Walthamstow, has recently been a vocal parliamentary advocate on this issue.

"The Republic of Ireland may have voted with an overwhelming majority to remove the ban on abortion but women in Northern Ireland are still criminalised by cruel and outdated Westminster laws," she tells RightsInfo.

In 2019 we will be redoubling our fight against this injustice and seeking to amend legislation.

Stella Creasy

She added that the collapse of the power-sharing agreement at Stormont, the devolved Northern Irish Assembly, two years ago "cannot be used as an excuse not to act on this basic human rights issue".

"In 2019, we will be redoubling our fight against this injustice and seeking to amend legislation to decriminalise abortion across the UK, including in Northern Ireland. Whatever deals the PM does with the DUP to stay in power, we will not rest until abortion is free, safe, legal and local for every UK citizen."

A cross-party group of MPs, including Creasey, sent a letter to the Joint Committee for Human Rights on Friday demanding that the issue of abortion in Northern Ireland be tackled as part of the upcoming Domestic Violence Bill.

The intention of the Domestic Violence Bill was to bring the law in line with the government's commitment to ratifying the Istanbul Convention - the gold standard in legislation to tackle violence against women and girls in all forms.

Is Safe And Legal Access To Abortion A Human Right?

According to the United Nations, "women's sexual and reproductive health is related to multiple human rights, including the right to life, the right to be free from torture, the right to health, the right to privacy, the right to education, and the prohibition of discrimination.

"The Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women (CEDAW) have both clearly indicated that women's right to health includes their sexual and reproductive health. This means that States have obligations to respect, protect and fulfil rights related to women's sexual and reproductive health."

We hope that this year will mark the end of inhumane and degrading treatment of UK citizens.

bpas

This is echoed under Article 8 of the Human Rights Act, which states that an individual has the right to respect for their family and private life, home and correspondence.

"Abortion is a human right - one which is still denied to many women here in the UK," a spokesperson for BPAS tells RightsInfo.

"In 2018, the Supreme Court found that the current near-total ban on abortion in Northern Ireland is in breach of Article 8, right to a private and family life, of the European Convention on Human Rights.

"We hope that this year will mark the end of this inhumane and degrading treatment of UK citizens and that MPs decriminalise abortion in Northern Ireland and across Great Britain."

Main image credit: BBC Call The Midwife/TV Still

About the Author

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BBC Abortion Row: Why Reproductive Rights Should Never Be 'Contentious'

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The BBC found itself in the midst of controversy last week after it refused to include advice about abortion as part of its advice service because it believed it was a "contentious issue".

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The European Court of Human Rights | Frederick Florin/AFP via Getty Images

A European court has ruled that U.K. border officials violated Article 8 of the European Convention of Human Rights - which guarantees citizens the right to respect for private and family life - when they stopped a French national at a British airport in 2011 on her return from visiting her husband in a French prison where he was serving time for terrorism offences.

Ruling in the case of Beghal vs. United Kingdom Thursday, European Court of Human Rights judges found unanimously that counter-terrorism legislation at the time "had not been sufficiently circumscribed."

Sylvie Beghal, who lives in Leicester in the English Midlands, alleged that border officials breached a series of human rights under Schedule 7 of the counter-terrorism legislation when they stopped and questioned her at East Midlands Airport after she had visited her husband in jail in France.

According to a press release, the judges found that there had been an "interference" with Beghal's human rights under Article 8, ruling that "at the time the applicant had been stopped, the Schedule 7 powers had not been "in accordance with the law," noting that "legislation in force at that time had not been sufficiently circumscribed nor were there adequate legal safeguards against abuse."

"In particular, people could be subjected to examination for up to nine hours and compelled to answer questions without being formally detained or having access to a lawyer. Furthermore, the possibility to seek judicial review of the exercise of the Schedule 7 powers was limited because the border official was not obliged to show "reasonable suspicion," the statement reads.

The court acknowledged that in its ruling it did not take into account subsequent changes to the law, introduced in 2014, requiring border officials to take a person into detention if they wish to examine him or her for longer than an hour, to only commence questioning after the arrival of a solicitor, and to release those being questioned after six hours.

Beghal was not awarded damages, as the court considered the finding of a violation a sufficient outcome.

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Court finds human rights violation under UK counter-terrorism legislation

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A European court has ruled that U.K. border officials violated Article 8 of the European Convention of Human Rights - which guarantees citizens the right to respect for private and family life - when they stopped a French national at a British airport in 2011 on her return from visiting her husband in a French prison where he was serving time for terrorism offences.

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The Justice and Security Act was given parliamentary approval on 25 April this year. One of the main justifications for expanding so-called secret courts was to prevent intelligence provided by US sources being exposed in British courts.

The Guardian's revelation that GCHQ, the UK's electronic eavesdropping and security agency, received material obtained by America's National Security Agency (NSA) through Prism, the online surveillance operation, will reinforce fears about what is being withheld from open court hearings.

What is a secret court?

The legal mechanism is known as closed material procedures (CMP). Secret intelligence can be introduced by the government but will only be seen by the judge and security-cleared "special advocates". The special advocate who represents the interest of an individual claimant cannot reveal precise details of the evidence and may only provide a "gist" or loose summary. Claimants may not, therefore, be aware of all the allegations made against them. Critics say this results in parties no longer being on an equal footing, tilting the advantage in the government's favour.

Haven't some hearings always been held behind closed doors?

Closed hearings are not unprecedented. Cases in the family division of the high court relating to child custody and divorce issues are regularly held in camera to protect privacy. CMPs are already used in employment tribunals, special immigration appeals commission hearings and the investigatory powers tribunal, which handles complaints about the intelligence services. The Justice and Security Act has now extended them into the main civil courts, allowing the government to exploit intelligence material to defend itself against claims for damages over alleged mistreatment such as rendition and torture.

Why does the government want more secret courts?

One rationale for the change was to preserve the integrity of the UK's secret intelligence exchanges with the US and other allies. Dismissing legal attempts to disclose such information, Ken Clarke, the cabinet minister without portfolio, said: "No other country in the world allows this kind of legal tourism to happen - for the good reason that it undermines confidence among other countries that might otherwise share vital intelligence with us."

What will be the effect of more secret courts?

Ken Clarke believes that more intelligence-related cases will come to court in future. In the past, he has said, the government was forced to settle and pay out compensation because it could not disclose evidence in court.

The independent reviewer of terrorism legislation, David Anderson QC, has described secret courts as "tolerable" as a last resort. There is "a small but indeterminate category of national-security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP - for all its inadequacies - should exist", he has said.

A first indication of how senior judges assess the process will come next Wednesday when the supreme court, which has held its first closed session, gives judgment in the case of Bank Mellat. The justices heard secret evidence about the Tehran finance house, which is challenging a Treasury-imposed trading ban, and its alleged involvement in transactions relating to Iran's nuclear programme.
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What are secret courts and what do they mean for UK justice?

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The Justice and Security Act was given parliamentary approval on 25 April this year. One of the main justifications for expanding so-called secret courts was to prevent intelligence provided by US sources being exposed in British courts.

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First Judge Only Trial - What was the reaction?

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First Judge Only Trial - What was the reaction?

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The Court of Appeal has ruled that a criminal trial can take place at Crown Court without a jury for the first time in England and Wales.
The Lord Chief Justice, Lord Judge, made legal history by agreeing to allow the trial to be heard by a judge alone.

It is the first time the power has been used since it came into force in 2007.

The case concerns four men accused of an armed robbery at Heathrow Airport in 2004. The judge said jury "tampering" was a "very significant" danger.

Lord Judge told the court the cost of the measures needed to protect jurors from potential influence, such as the services of police officers, was too high and that such measures may not properly insulate them.

For example, they "did not sufficiently address the potential problem of interference with jurors through their families," Lord Judge said.
'Cash unrecovered'
In addition, it would be "totally unfair" to impose such "additional burdens" on individual jurors, he continued.

The Lord Chief Justice said the trial of the four men - John Twomey, 61, Barry Hibberd, 41, Peter Blake, 56, and Glen Cameron, 49, who are all standing trial for robbery - would "take place without a jury in due course".

Lord Judge, sitting with Lord Justice Goldring and Mr Justice McCombe, explained the case, which had been brought to trial three previous times, concerned "very serious criminal activity".

It included possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery and conspiracy to rob, he said.

"The objective of the robbery was something in the region of £10m in sterling and mixed foreign currency," he told the court.

But, he went on, the actual proceeds amounted to £1.75m and remain largely unrecovered.

Lord Judge described trial by jury as a "hallowed principle" of British justice, but said the Criminal Justice Act 2003 did allow a trial to be heard by a judge alone in certain circumstances.

"Where it arises the judge assimilates all the functions of the jury with his own unchanged judicial responsibilities," he said.

"This function, although new in the context of trial on indictment, is well known in the ordinary operation of the criminal justice system and is exercised for example by district judges [magistrates' courts] in less serious, summary cases."

This is a dangerous precedent

A Crown Prosecution Service spokesman said: "Rather than the case not proceeding at all this decision enables these defendants, who we allege are involved in serious criminal activity, to be tried and brought to justice."

But Liberty director of policy Isabella Sankey said: "This is a dangerous precedent.

"The right to jury trial isn't just a hallowed principle but a practice that ensures that one class of people don't sit in judgement over another and the public have confidence in an open and representative justice system.

"What signal do we send to witnesses if the police can't even protect juries?"

The new trial will be the first Crown Court case in England and Wales to be heard by a judge alone using powers under Sections 44 and 46 of the Criminal Justice Act 2003, which came into force in July 2007.

It allows for a trial without a jury when there is evidence of "a real and present danger that jury tampering would take place" and where additional measures to prevent it would not fully succeed.

No-jury trials are a more regular feature of justice elsewhere in the UK.

Diplock courts have been used in Northern Ireland since 1973 to combat jury intimidation by paramilitary groups.

And some criminal cases in Scotland are heard by a sheriff in the Sheriff Court or by a bench of one or more lay justices in the District Court.

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The Court of Appeal has ruled that a criminal trial can take place at Crown Court without a jury for the first time in England and Wales. The Lord Chief Justice, Lord Judge, made legal history by agreeing to allow the trial to be heard by a judge alone.

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Trials without juries in serious criminal cases must only be held as a "last resort", the Lord Chief Justice of England and Wales has said.

Ruling on two Court of Appeal cases, he said judge-only trials could only be ordered where "a real and present danger" of jury-tampering was certain.

But if a jury had to be discharged during a trial, the judge could deliver a verdict on his own, Lord Judge said.

Four armed robbers were jailed after a historic trial without a jury in March.

After allegations of jury tampering at a previous trial, the case was the first criminal trial for more than 350 years to be heard in a Crown Court in England and Wales without a jury.

The gang were found guilty of robbery and having a firearm with intent to commit robbery after they raided a warehouse near Heathrow Airport in February 2004, making off with £1.75m.

Sitting with other senior Court of Appeal judges in London on Friday, Lord Judge allowed appeals by defendants in two separate cases against rulings of Crown Court judges that their trials should be conducted by a judge alone.

A judge at Birmingham Crown Court and another at Sheffield Crown Court had made their orders in relation to a "real and present danger" of jury tampering.

'No justified complaint'

Analysis

Jury trial is a fundamental constitutional right dating back to Magna Carta in 1215.

Not since 1641 and the demise of the Court of Star Chamber, used by monarchs for political ends up until the civil war, had anyone been tried for a serious indictable offence without a jury.

However, the right was limited by statute in 2003 to allow non-jury trials where there was a "real and present danger" of jury tampering and any protective measures were considered to be inadequate.

Following the conclusion of the first non-jury trial at the Old Bailey earlier this year, it emerged that the Crown Prosecution Service had applied for two more.

That seemed like a creeping trend and worried civil liberties groups and some lawyers.

Today's judgements firmly close the door on that. In future jury-less trials will take place only in the most extreme cases of jury tampering.

Delivering his ruling, Lord Judge said: "We must emphasise as unequivocally as we can that, notwithstanding the statutory arrangements introduced in the 2003 Act (Criminal Justice Act) which permit the court to order the trial of a serious criminal offence without a jury, this remains and must remain the decision of last resort."

He said a trial without a jury could only to be ordered if a court was "sure" the danger of jury tampering was certain - and that, despite any reasonable steps that might be taken to prevent it, the likelihood of such tampering was "so substantial" the interests of justice required a trial to be conducted without a jury.

Except in "extreme cases" - where necessary protective measures constituted an unreasonable intrusion into the lives of jurors - "the confident expectation must be that the jury will perform its duties with its customary determination to do justice," he said.

But, he said, if during the course of any trial, "attempts [were] made to tamper with the jury to the extent that the judge feels it necessary to discharge the entire jury, it should be clearly understood that the judge may continue with the trial and deliver a judgment and verdict on his own".

"The principle of trial by jury is precious, but in the end any defendant who is responsible for abusing this principle by attempting to subvert the process has no justified complaint that he has been deprived of a right which, by his own actions, he himself has spurned," he said.

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Trials without juries in serious criminal cases must only be held as a "last resort", the Lord Chief Justice of England and Wales has said. Ruling on two Court of Appeal cases, he said judge-only trials could only be ordered where "a real and present danger" of jury-tampering was certain.

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Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined.

Lord Coleridge, giving judgment in 1887, would be forgiven for thinking that in R v Riley he had settled the law on whether sexual history evidence with parties other than the accused is relevant in rape trials. He said that in seeking to prove whether or not a criminal attempt to rape, as was the issue in that case, has been made 'upon her by A, evidence that she has previously had connection with B and C is obviously not in point'. He continued that any such evidence should be excluded:

not only on the ground that to admit it would be unfair and a hardship to the woman, but also on the general principle that it is not evidence which goes directly to the point in issue at the trial.

Finally, he identified the dangers of permitting such evidence, 'It is obvious, too, that the result of admitting such evidence would be to deprive an unchaste woman of any protection against assaults of this nature'.

Unfortunately, the clarity of Colderidge's exposition was not reflected in the development of English law. An increasingly tolerant judicial approach to permitting sexual history evidence led to calls for reform, with the 1975 Heilbron Report recommending significant new restrictions. The subsequent Sexual Offences (Amendment) Act 1976, however, resiled from the stricter Heilbron approach, placing its faith in judicial discretion to limit the admission of such evidence. This discretionary approach, however, did little to stem the flow of sexual history evidence being admitted: once again leading to demands for legislative reform. Eventually, the Youth Justice and Criminal Evidence Act 1999 was adopted, replacing the discretionary regime with a closed set of exceptions to a general rule of exclusion and, importantly, no overriding judicial discretion. Nonetheless, despite the clear legislative intent to curtail the use of sexual history evidence in rape trials, it continues to be admitted in a considerable number of trials. In addition, shortly after the introduction of the 1999 Act, the House of Lords decision in R v A reintroduced an element of judicial discretion. Not surprisingly, therefore, there have been continued calls for (further) legislative reform. Most recently, proposals were made in Parliament to strengthen the law following the controversial Court of Appeal judgment in R v Ched Evans where it was held that sexual history evidence relating to persons other than the accused was admissible and potentially relevant. Following a retrial, where this evidence was introduced, the defendant was acquitted of rape.

In this context of high-profile and contentious public debates, and likely further attempts to reform the law, this article examines afresh the admissibility of sexual history evidence in rape trials. In light of the Evans controversy, it focuses particularly on evidence relating to persons other than the accused (third-party evidence). In order to provide necessary context, it begins by considering the justifications for restricting sexual history evidence, followed by an outline of the research data on how often this evidence is used. The current law, as set out in s. 41 of the Youth Justice and Criminal Evidence Act 1999, is then analysed, including a detailed assessment of the Evans judgment. Concluding that the law is in urgent need of reform, the final section puts foward a number of recommendations.

Evidence focusing on a complainant's sexual history has long been introduced in rape trials, originally focusing on ensuring that evidence of prostitution-'notorious bad character'-was before the court to both infer consent and challenge credibility. Subsequent cases tested the boundaries of this early case law, suggesting that evidence of promiscuity, while not prostitution, similarly challenged complainant credibility and implied consent. Such inferences about women's sexuality and credibility-that sexually active women are less credible as witnesses and more likely to consent-are the 'twin myths' that restrictions on sexual history evidence have been trying to counter.

As explained by Justice McLachlin in the influential Canadian case R v Seaboyer:

These inferences were based not on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief. These twin myths are now discredited. The fact that a woman has had intercourse on other occasions does not in itself increase the logical probability that she consented to intercourse with the accused. Nor does it make her a liar.

As a result of the beliefs underpinning these 'twin myths' being increasingly challenged, attempts have been made across many jurisdictions to restrict the admissibility of sexual history evidence. Often termed 'rape shield' laws, such provisions seek to limit the introduction of what is commonly referred to as 'sexual history evidence', though this term does include sexual activity after an alleged rape as well as evidence relating to other forms of sexual behaviour and character. However, despite legislation being introduced to restrict admission of these forms of evidence, debate has continued to rage over the uses to which it is put.

Protecting Autonomy: Consent as Person and Situation Specific

Sexual history evidence is most controversially introduced to support inferences of consent and/or to challenge credibility. In relation to consent, adducing sexual history evidence relies on an assumption that previous consent is indicative of consent on the occasion in question. Such a rationale profoundly challenges the notion of consent being person and situation specific. Specifically in relation to sexual activity with the accused, it assumes that consent can be inferred from prior consent. This position was articulated by Lord Steyn in R v A where he stated that:

As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant's state of mind.

In a similar vein, analysing R v A, Di Birch claims that the 'complainant's prior sexual behaviour with A makes her non-consent highly unlikely'. Not only does this suggest that prior consent may be relevant but indeed claims that it makes consent more likely.

While this is a commonly held position, infusing English jurisprudence and scholarly work in the field, it is a prohibited form of reasoning in Canadian law because it is based on one of the 'twin myths'. In particular, such an approach does not sufficiently recognise that consent is given afresh on each occasion. Also, in assuming consent to be more likely, it does not sufficiently recognise the variety of contexts of sexual relationships, including coercive or abusive relationships. Further, it neglects to consider the possibility that, in fact, having once engaged in sexual activity with the accused, he may become the person to which the complainant is least likely to consent in future. Indeed, assuming that someone is more likely to consent to sexual activity if they have done so in the past, is not so far away from the once-held assumption, and legal position, of implied consent during marriage.

Accordingly, while it is commonly assumed that evidence of previous consensual sexual history is relevant to support an inference of consent, this approach must be challenged. While it might be possible to say, in some circumstances, that evidence of previous consensual relations is legally relevant, it being marginally more likely that sex was consensual that not, as a general proposition, this fails to take into account the variety of conditions within which sexual relations take place. Even in cases in which evidence might be said to be relevant, this should not mean that such material is necessarily admitted (due to its potential prejudice and/or only marginal relevance to the issues).

Regardless of the definition used, the content of any relevancy decision will be filled by the particular judge's experience, common sense and/or logic. There are certain areas of enquiry where experience, common sense and logic are informed by stereotype and myth...This area of the law has been particularly prone to the utilisation of stereotype in the determination of relevance.

Nonetheless, more common today are judicial pronouncements disavowing the relevance of third-party evidence to consent, including Lord Clyde in R v A who clearly stated that while some evidence of previous sexual behaviour with the defendant may be relevant to an issue of consent, he did not 'consider that evidence of her behaviour with other men should now be accepted as relevant for that purpose'. This affirms the notion of consent as expressed by Lady Hale:

It is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.

Applying this reasoning clarifies that consent to sexual activity with a third party is never relevant to the issue of consent with the accused. However, despite the authority of this approach, not only jurisprudentially but also conceptually in terms of the values of sexual autonomy and free choice, it has been sorely tested, with the judgment in Evans once again raising the prospect of sexual history evidence with third parties being used to demonstrate consent.

Prejudicial Impacts and the Integrity of the Trial

For these reasons, sexual history evidence risks introducing irrelevant or prejudicial material which may distort rather than promote the truth-finding role of the trial and rectitude in its decision-making. Restrictions on this evidence are necessary, as further identified by the Heilbron Report: the 'exclusion of irrelevant evidence at the trial will make it easier for juries to arrive at a true verdict'. Similarly, Justice Gonthier in the Canadian case of R v Darrach, upholding the constitutionality of Canadian restrictions on sexual history evidence, held that the accused is not entitled to procedures that would 'distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial'. The risk, as identified by Lord Hutton in R v A, is that the 'sexual history of the complainant may distort the course of the trial and divert the jury from the issue which they have to determine'. The integrity of the trial, therefore, means that irrelevant or prejudicial evidence, especially evidence that may mislead the jury or distract it from the task at hand, must be excluded from the trial.

Protecting Witnesses from Unnecessary Humiliation and Distress

In this context, it is not difficult to understand how research evidence and witness testimony over decades has raised concerns about the extent to which rape complainants are facing humiliating and traumatic trial processes. Phrases such as the 'second rape' or 'judicial rape' have become common parlance due to the enduring evidence from complainants of their adverse treatment in court. Thus, while giving evidence and facing cross-examination will always be a stressful activity, and there is no dispute over the need for careful cross-examination on salient issues, the research evidence suggests continuing practices which go beyond necessary questioning and become bullying, harassing and humiliating. Accordingly, restrictions on sexual history evidence, by limiting evidence and cross-examination to only highly probative material, are justified by the need to reduce the humiliating and distressing nature of cross-examination in rape trials, as well as protecting a complainant's right to privacy.

Securing Best Evidence

Reducing humiliation and trauma is necessary in and of itself, but also vital to ensuring that complainants are able to give their best evidence. Perhaps not surprising in the light of the research discussed above, another recent review of rape victims' experiences found that they were highly anxious before and during court due to the evidence-giving process. While some anxiety will be unavoidable, the fear and reality of unnecessary cross-examination on prejudicial material will interfere with a complainant's ability to give evidence in the most suitable ways for the court and jury. Therefore, restrictions on sexual history evidence, and related procedural safeguards, can help secure the best evidence from complainants which, in turn, is necessary for the trial process and can have a positive impact on trial outcomes.

Encouraging Police Reports and Supporting Prosecutions

However, many rape cases get nowhere near a court. One reason is the fear of the trial process, with many studies identifying it as a key barrier to both reporting offences to the police and continuing with prosecutions. Thus, effective restrictions on sexual history evidence are vital both to encouraging victims to report to the police and then to continue to support prosecutions.

Despite the compelling justifications for restrictions on the use of sexual history evidence, it continues to be regularly admitted in rape trials across England and Wales, often for erroneous purposes and frequently without following the procedural rules. Research in the 1980s and 1990s revealed the extensive use of sexual history evidence in rape trials, with the majority of the evidence relating to sexual activity with men other than the accused. A comprehensive study in 2006 concluded that, on the whole, the current restrictions were 'evaded, circumvented and resisted'. Specifically, the study found that applications to admit sexual history evidence were made in just under one-third of trials sampled, though in practice this evidence was raised in two-thirds of trials as it was often introduced without following the proper procedures. Hardly any applications were made in advance of the trial, contrary to the procedural rules, and two-thirds of those made at trial were successful. Broadly equal numbers of applications were made relating to the accused and third parties. Further, there was a statistically significant association between an application to admit sexual history evidence and an acquittal. The study also found that information on sexual behaviour appeared to influence Crown Prosecution Service decision-making. More recently, a study observing 30 rape trials during 2015-2016 found that sexual history evidence was introduced in just over one-third of the trials, often in circumvention of the procedural rules. Of the 11 cases where this evidence was introduced, 6 involved evidence or questioning relating to third parties.

These findings from England and Wales echo the practice in jurisdictions with similar legislative provisions. A recent New Zealand study found that questioning about the complainant's prior sexual history (including with third parties) was introduced in 43% of recent cases. The most recent Scottish statistics reveal that applications to admit sexual history evidence have been made in 72% of sexual offence trials (one-fifth relating to third parties) and only 7% of the applications were refused. Worryingly, this demonstrated an increase in the use of sexual history evidence following new reforms aiming to restrict this material. In Ireland, a study of rape trials during 2003-2009 found sexual history evidence was admitted in two-thirds of cases (with a 70% success rate for applications) most commonly related to previous sexual activity with the accused, previous alleged false allegations and 'promiscuity/routinely displays suggestive behaviour'.

While we need more up-to-date data on the use of sexual history evidence, one thing we can say is that there is no evidence to support claims by the government that the use of sexual history evidence is 'exceptional'. Indeed, the evidence we do have shows that it is commonly introduced in trials, including third-party evidence, and often without following the prescribed procedural rules.

As noted above, the 1975 Heilbron Report recommended strict limitations on the use of third-party sexual history evidence in rape trials, but the subsequent 1976 Act failed to follow such an approach. It placed its faith in judicial discretion to limit the introduction of such evidence, despite it being the exercise of judicial discretion that had led to the calls for reform. Perhaps not surprisingly, therefore, the 1976 Act did little to alter the practice of the courts, leading to sustained pressure for change.

By the 1990s, the need for reform was widely recognised, leading to the enactment of the s. 41-43 of the Youth Justice and Criminal Evidence Act 1999. Section 41(1) provides that except with leave of the court, no evidence may be adduced at trial, and no question may be asked in cross-examination, by or on behalf of the defendant about any 'sexual behaviour' of the complainant. Section 41, therefore, applies to evidence relating to sexual activity both with the accused and with third parties. The restrictions only apply to the defence (and not the prosecution) and leave may only be given if the evidence falls within one of the four exceptions, relates to 'specific instances' of sexual behaviour (s. 41(6)) and satisfies two further criteria, namely, a refusal of leave might have the result of rendering unsafe a conclusion of the court or jury (s. 41(2)(b)) and the purpose or main purpose is not to impugn the credibility of the complainant (s. 41(4)). Notably, s. 41 does not provide an overriding discretion for judges to admit evidence.

The first exception is where the issue to be proven is 'not an issue of consent' (s. 41(3)(a)) which includes evidence to support a defence of reasonable belief in consent, motive to lie, as well as being used to admit evidence relating to alleged previous 'false' complaints. The other exceptions apply where the issue is consent. The second exception is where the evidence relates to sexual behaviour at or about the same time as the sexual activity in question (s. 41(3)(b)). Evidence of sexual behaviour that is 'so similar' that the 'similarity cannot reasonably be explained as a coincidence' is the third exception (s. 41(3(c)) and evidence is permitted under s. 41(5) where it is necessary to rebut prosecution claims.

This legislative regime can only be properly understood in the context of the 2001 House of Lords judgment in R v A. This case was the culmination of a legal challenge to s. 41 on the basis that it contravened a defendant's right to a fair trial enshrined in Article 6 of the European Convention of Human Rights and the Human Rights Act 1998. In R v A, the accused wished to adduce evidence of a supposed relationship with the complainant in the weeks before the alleged rape. Finding that such evidence did not come within one of the exceptions set out in s. 41 and therefore not admissible, the first instance ruling was appealed to the House of Lords. On holding that the blanket exclusion of such evidence might interfere with the defendant's rights, Lord Steyn held that the 'test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to an issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the Convention'. Deploying the interpretative obligation under s. 3 of the Human Rights Act 1998, the judgment effectively rewrote s. 41 to permit (otherwise inadmissible) evidence between the accused and complainant where there is a risk of contravening the defendant's right to a fair trial.

The judgment in R v A introduced a considerable element of confusion and ambiguity into the law. While according to precedent, the ruling only applies to sexual history evidence with the accused, with no impact therefore on third-party evidence, its impact has been taken to be broader. For example, research with judges has found that with only one exception, they interpreted R v A as giving them a broad discretion to admit evidence where necessary to ensure a fair trial. This is despite Lord Hope's clear opinion that it was not possible to read into s. 41 'a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial'.

The Court of Appeal has on occasion been robust in resisting defence applications to introduce otherwise inadmissible evidence; at other times, it has been more forgiving. In R v Andre Barrington White, for example, the court was clear that R v A was 'not authority for any wider reading of s. 41' in cases of third-party sexual activity. But the court took a different view in R v Hamadi stating that the 'wider importance' of R v A lies in the 'recognition' that protecting complainants from 'indignity and humiliating questions' to which 'section 41 is directed, must ultimately give way to the right to a fair trial'.

This latter approach appears to presume that a defendant's interests take precedence over the other interests when considering the fairness of trials. Importantly, the right to a fair trial is a qualified right, as emphasised by the European Court of Human Rights which has stated that the 'principles of a fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify'. This balance requires consideration of 'the right to respect for the victim's private life'. More recent jurisprudence has confirmed this approach, with Scottish provisions restricting sexual history evidence, which are similar in essence to those in England and Wales, recently being upheld. While confirming that the admission of evidence is a matter for domestic courts to determine, it was held that the Scottish Parliament was 'fully entitled' to its view that sexual history evidence was 'rarely relevant and, even where it was, its probative value was frequently weak when compared with its prejudicial effect'. The right to a fair trial, therefore, neither takes precedence over other interests nor requires admission of all relevant evidence. Indeed, restrictions on sexual history evidence can enhance the fairness of trials, protecting the legitimate interests of witnesses, defendants and all of society.

Having outlined the current legal regime in s. 41, this section examines each of the four exceptions to the general exclusion of sexual history evidence, focusing specifically on the admission or exclusion of third-party evidence.

Similarity Evidence, Third Parties and Inferring Consent

Controversial since its inception, the use of the 'similarity exception' in the Evans case caused a public furore and sparked a number of parliamentary reform initiatives discussed further below. Its genesis goes back to the Heilbron Report which first proposed an exception based on similarity, specifically that permitting evidence of sexual behaviour which was 'striking similar' to the alleged events on the occasion in question. Due to the overall permissive nature of the 1976 Act, however, no such exception was introduced.

The question of similarity evidence arose again during the parliamentary debates leading to the 1999 Act. No similarity provision was included in the original bill, the exception only being added in the House of Lords when Baroness Mallalieu suggested that the law needed to permit evidence that a complainant had previously engaged in a 'Romeo and Juliet fantasy', namely, a desire to have sex with men after they have climbed into the bedroom from a balcony. This eccentric suggestion was sufficient to persuade the government that another exception was needed, quite likely on the assumption that this peculiar example was not going to affect the overall operation of the law. Accordingly, s. 41(3)(c) permits evidence that relates to consent and the sexual behaviour is 'in any respect, so similar' to (i) any sexual behaviour of the complainant that took place as part of the event that is the subject matter of the charge or (ii) any other sexual behaviour of the complainant that took place at or about the same time as that event and that the 'similarity cannot reasonably be explained as a coincidence'.

Few other jurisdictions permit sexual history evidence on the basis of similarity and specifically not to infer consent. Jennifer Temkin has noted that New South Wales rejected a similarity exception as 'there would be difficulties in determining when a similarity in the sexual context was sufficiently striking'. While in Canada similarity evidence is admissible, it is not permitted to demonstrate consent. In R v Seaboyer, Justice McLachlin permitted an exception as follows: 'Evidence of prior sexual conduct which meets the requirements of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness'. She continued that this evidence of 'prior sexual conduct draws upon the inference that prior conduct infers similar subsequent conduct' and it therefore 'closely resembles the prohibited use of the evidence and must be carefully scrutinized'.

evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display.

However, while the government's intention was to focus on unusual conduct, and ensure a narrow interpretation of the exception, the practice of the law has proven different.

The problems began with Lord Clyde in R v A when he stated that the similarity provision 'does not necessitate that the similarity has to be in some rare or bizarre conduct'. It will be remembered that R v A involved an alleged prior relationship, with Lord Clyde's opinion seeking to find ways to bring such evidence within the confines of s. 41. One way to do so was to give an expansive interpretation of the 'similarity' exception to include relationship evidence. Lord Clyde's focus, therefore, was on sexual history evidence with the accused (not third parties), as he made clear when stating that admitting third-party evidence 'is not the question in the present appeal'.

In any event, while Lord Clyde's statement that rare or bizarre conduct is not required has been cited with approval, no notice appears to have been taken of his further comments. He continued that in determining similarity, the following needs to be identified: 'something about the sexual behaviour of the complainant on each of the occasions, such as something said or done by him or her which is not so unremarkable as to be reasonably explained as a coincidence'. Where something is 'not so unremarkable', it becomes remarkable; that is, unusual or rare. This statement, therefore, seems to be at odds with his prior opinion that rare or bizarre conduct is not needed. This brings a level of confusion to Lord Clyde's comments and while this may not have been his intention, it is the meaning of his words.

At best, therefore, Lord Clyde's opinion on the scope of the similarity exception is valid only in relation to sexual history evidence with the accused. In relation to third-party evidence, his opinion lacks clarity, his interpretation of the law is questionable by reference to parliamentary intention and it is, in any event, obiter. Nonetheless, his statement that similar conduct need not be rare or bizarre to satisfy the exception has been followed in subsequent case law including Evans.

The current position is best examined by looking, first, at the most recent Court of Appeal judgment on the similarity exception, R v Guthrie. Handed down shortly after Evans, though making no reference to that case, the Court of Appeal sought to summarise the applicable law on the similarity exception. It emphasised a number of key elements but, problematically, failed to draw a distinction between evidence with the accused and third parties.

The court began by stating that a 'striking similarity' is not required, citing as authority Lord Clyde in R v A. Instead, all that is required is a 'relevant similarity'. This provides little real guidance beyond the surely obvious requirement of relevance. Further, in neglecting to distinguish between evidence with the accused and with third parties, the court does not recognise that Lord Clyde's comments are obiter in relation to third parties (and open to being distinguished on that basis as well as in relation to parliamentary intention).

Nonetheless, the court's third 'principle' provides an example of similarities that might be deemed irrelevant. It approved the ruling in R v Harris, specifically that if the evidence would be 'tantamount' to saying that the complainant was a person who engaged in casual sex in the past, and therefore would have been more likely to do so on the occasion in question, cross-examination will not be allowed. This is a welcome rejection of this form of evidence. However, if we look in more detail at the specifics of R v Harris, there are concerning undertones that take on greater significance in light of the expansive ruling in Evans.

In R v Harris, the defendant wished to adduce evidence regarding the complainant's experience of alleged drunken and 'risky' sexual encounters with strangers. The trial judge was rightly robust in dismissing this application as it amounted to saying that as the complainant had engaged in casual sex in the past with other men, she was more likely to have consented to the defendant on this occasion. This would appear to be a straightforward and obvious ruling, recognising that consent is to a person not a circumstance. On appeal, however, the Court of Appeal said that this was not an 'easy' case, without giving any more reasons as to why. The Appeal Court did decide that the trial judge's ruling was within his 'margin of judgment', but this is not exactly a ringing endorsement. The Court of Appeal was clearly of the view that this was a marginal case, with the implication that they themselves might have decided the case differently. Yet, the so-called similarities related simply to sex with strangers (men other than the accused), following the consumption of alcohol. If this were to satisfy a similarity ruling, then vast swathes of sexual behaviour would be apt to be admitted, seriously undermining Parliament's intention to restrict the use of sexual history evidence, especially that with third parties.

Interestingly, therefore, we have the Court of Appeal in R v Harris only reluctantly upholding the first instance ruling excluding third-party evidence relating to casual sex, but the later Appeal Court in R v Guthrie incorporating the first instance judicial comments into its 'principles'. To the extent that this means, most recently, an endorsement of the first instance approach, it is welcome. However, this also tells us that decisions regarding admission are not clear-cut and judges do take different views; potentially a justifiable exercise of judicial discretion. However, it also underlines the lack of clarity in this area of law which encourages defence applications, at the same time as discouraging complainants from reporting and giving evidence. Furthermore, the irrelevance and highly prejudicial nature of the sexual history evidence with third parties being considered in R v Harris should have been obvious. If it is not apparent that s. 41 should be excluding evidence of casual sex with third parties, then it is not difficult to understand why this area of law has become the subject of reform proposals to further limit judicial discretion.

The judgment in R v Harris and its concerning undercurrents has resonances with the earlier Court of Appeal judgment in R v Hamadi. In this case, the victim accepted a lift from the defendant, whom she had not met until that time, late at night and instead of taking her home, he drove to deserted ground and raped her. The defendant claimed consent and sought to introduce evidence of the complainant's previous sexual activity with men other than her boyfriend on the grounds of similarity, namely, that the complainant instigated sexual activity, it took place outside in relatively public places, in winter and while she was in a relationship with another. The trial judge refused the application, holding that any such evidence had no bearing on the issue of consent, an admissibility ruling upheld by the Court of Appeal. However, in giving judgment, the Appeal Court emphasised that the victim's supposedly 'promiscuous nature' was of a different nature to evidence such as someone being prepared to 'pick up strangers off the street' (which is what the allegation was in Hamadi). This appears to suggest that while evidence of general promiscuity was not sufficiently similar (or relevant), if there had been evidence relating to 'picking up strangers', the ruling might have been different and the evidence deemed admissible. The clear implication is that it was only that her previous 'promiscuous' sexual activity had not been with 'strangers' that saved her from having this evidence adduced. In both R v Harris and R v Hamadi, the Court of Appeal excluded sexual history evidence with third parties. However, they were not unequivocal and robust judgments. They harbour much potential for defence teams seeking to introduce sexual history evidence, including with third parties.

About the only potentially helpful guidance on 'relevant similarity' was offered in R v Harris, with the Court of Appeal describing the case of R v T (Abdul) as an 'easy' one where the 'the similarity was so clear it was not disputed'. The case involved an alleged rape by a former partner that took place within a children's climbing frame in a park. The defence wished to adduce evidence that consensual sexual activity had taken place, between the parties, in the same climbing frame a few weeks before the alleged rape, and in the same sexual position (standing up and from behind). The Court of Appeal held that this evidence should have been permitted under the similarity exception, referring to the climbing frame and sexual position, and quashed the conviction. While it remains possible to dispute the relevance of this material, the judgment does at least attempt to clarify that such a situation 'easily' passes the threshold of admissibility of similarity evidence. However, it does raise many further questions. What if the activity had been in the bushes in the park, not the climbing frame? Where, for example, does this leave sexual activity taking place in other circumstances, such as in a car? During the s. 41 legislative debates, the government identified this as a factual scenario outside of the scope of any similarity exception. Further, no reference is made, either in R v T (Abdul) or in R v Harris, to this also being a case of sexual history evidence with the accused which should put it on a different footing to third-party evidence. It seems most likely that R v T (Abdul) is an 'easy' case because of its relative peculiarity (and it is sexual activity with the accused); indeed, it might even be said that it is a 'rare' or 'bizarre' scenario. But, as the Court of Appeal in R v Guthrie emphasises that only a 'relevant similarity' is required, we are little wiser.

Nonetheless, in continuing their summary of key principles, the Court of Appeal in R v Guthrie suggested that there must also be a 'sufficient chronological nexus between the events' to render the sexual material probative. The court referred to R v MM where it was held that sexual activity three to four months prior to the alleged offence was not sufficiently close in time to be relevant. Further, a distance of one year in R v Guthrie itself was too remote. While both of these cases involved sexual history evidence with the accused, in situations where it is deemed that third-party evidence is relevant, this principle should go some way towards potentially limiting fishing expeditions regarding a complainant's prior sexual history.

Finally, the court stated that in all cases 'there is an exercise of judgment' and that this will demonstrate the 'high threshold' required. This does little to help determine the scope of the exception, other than, as identified above, emphasising the fluid nature of judicial interpretations. While the court stated that there is a 'high threshold', it continued that only a 'relevant similarity' is required. Evidence must be 'truly probative', though there is always an overarching 'exercise of a judgment'. There is no differentiation in the case law between evidence relating to third parties and that with the accused, either factually or in terms of Lord Clyde's influential obiter dictum. In relation to specific factual scenarios, we only know that where the evidence is with the accused, sex in a public climbing frame is sufficiently similar. Where the evidence involves third parties, there is little to no guidance other than the (lukewarm) exclusion of casual sex ( R v Harris) and 'promiscuity' (though maybe not 'picking up strangers', R v Hamadi). Further, in R v Guthrie, there is a (surely deliberate) failure to refer to the Evans judgment, despite similarity being the central issue. How does R v Evans fit into these key 'principles'? Is it an 'easy' case? Does it exemplify a 'high threshold'? Or, is it simply an 'exercise of judgment' with which the court in R v Guthrie perhaps disagreed (hence the lack of endorsement)? It is to an examination of the Evans case that we now turn.

This case was notorious long before the Court of Appeal ruled on the admissibility of sexual history evidence. As a well-known footballer, Evans's conviction for rape caused a media frenzy. Post-conviction, supporters of Evans mounted campaigns to clear his name and unlawfully shared online the victim's identity, the latter leading to a few successful prosecutions. The campaigns, including offering substantial financial rewards for 'new' information, kept the issue in the public eye, though Evans's appeal against conviction was initially refused. It was only when the Evans' defence team and private investigators found new witnesses who had had sex with the victim, that the Criminal Cases Review Commission referred the case to the Court of Appeal which quashed the conviction.

The Court of Appeal determined that the sexual behaviour evidence with third parties 'would have been relevant and admissible' at trial. The court relied on Lord Clyde's obiter comments in R v A, holding that the behaviour need not be 'unusual or bizarre'. It then identified the similar elements as being (a) the complaint 'had been drinking', (b) she 'instigated certain sexual activity', (c) she 'directed her sexual partner into certain positions' and (d) 'used specific words of encouragement'. Specifically, the sexual intercourse included the 'doggy style' sexual position and she allegedly used the phrase 'f.k me harder'. The evidence was held to be potentially admissible under the similarity exception in s. 41(3)(c)(i) and the conviction quashed. A retrial was held at which the sexual history evidence was admitted and the defendant was acquitted.

Not surprisingly, counsel for the Crown had argued that this alleged sexual activity was commonplace and therefore not conduct from which consent could be inferred. While it is difficult to be definitive about people's sexual habits, the evidence available does confirm the popularity of this sexual position. Further, language such as that allegedly used in Evans also appears to be common, being a standard trope in mainstream pornography. Two other features were identified by the court as providing evidence of the complainant behaving with the other men in a 'very similar fashion', namely, 'drinking' and 'instigating' certain sexual activity. If the consumption of alcohol is to become an element which can be raised in evidence to demonstrate similarity, then any suggestion of there being a 'high threshold' will need to be revised. As to 'instigating' sexual activity, aside from determining what this actually means in practice, its reference here suggests outdated and prejudicial assumptions about women's passivity in sexual activity. In sum, this was ordinary and commonplace sexual activity which could reasonably be explained as a coincidence.

Nonetheless, in holding that the similarity did not need to be unusual, the ordinary nature of the sexual activity was not regarded as relevant. This underlines the problematic nature of this exception and how it has been understood. First, the court relied on the comments of Lord Clyde in R v A to hold that nothing unusual was required to satisfy the test. Notwithstanding that these comments were obiter, and contrary to parliamentary intention, they also produce a test which is difficult to apply. If the requirement is for conduct that cannot (reasonably) be explained as a coincidence, there must therefore need be a meaningful connection, plan or pattern. Therefore, we must ask how such a connection or pattern is to be demonstrated (thereby showing the conduct not to be a coincidence). One way would be to require the conduct to be unusual and rare such that it is more likely to be part of a pattern, or connected (and not a coincidence). If, however, the conduct does not have to be unusual or bizarre, and can be ordinary and commonplace, how can we tell whether there is in fact a pattern or connection? If the conduct is so ordinary as to be commonplace, it can easily be explained as a coincidence. Therefore, if we are looking for activity that cannot (reasonably) be explained as a coincidence, but we do not have to show that something is unusual or bizarre, it is difficult to see how it can be established. Indeed, the factual situation in R v Evans gives a very good example of this problem. The Court of Appeal said that unusual conduct was not required, so the commonplace activities in Evans were sufficient to satisfy the exception. But if the activities are commonplace, how can this also be evidence of non-coincidence? Surely, the everyday nature of the activities point towards coincidence.

The logical conclusion post- Evans is that the more ordinary the sexual activity, the more it might be used in evidence against a complainant, as it will be easier to characterise it as 'similar' and not coincidental: the sex took place on a bed, in a bedroom, late at night, after consuming alcohol and in the missionary position. None of these elements are unusual or bizarre and so presumably identifying (even a few of) them may be sufficient to constitute the similarity required to satisfy the s. 41 exception. If so, in almost every case involving partners or former partners, evidence of their sexual behaviour could be admitted on this basis due to the similarities of ongoing sexual conduct. And, in relation to sexual activity with third parties, as in Evans, the more ordinary the activities and the more sexual partners the complainant has had, the more the complainant is at risk of any previous sexual activity being admitted and claimed 'similar'.

The Court of Appeal concluded by acknowledging that the circumstances in which evidence of sexual behaviour with third parties is admitted should be rare, but that R v Evans is a 'rare case'. This means that we end up in a situation whereby for the evidence to be admitted it does not have to be rare or unusual, yet such evidence is only to be admitted in 'rare' cases. If the sexual activity can be commonplace, what is it that makes it a 'rare' case? How does having sex doggy style, after drinking alcohol, even using the word 'harder', with men other than the accused, produce a 'rare' case?

Further, what if there is evidence of other sexual activity with the complainant not sharing the same 'similarities'? In Evans, one of the defence witnesses, whose experience with the complainant was supposedly 'similar', referred to a number of other instances of sexual activity between them but did not claim the specific similarities for those occasions. What is the import of there being many incidences of sexual activity with this witness, but only one that bore the 'similarities' to activity with the accused? Could this, instead, suggest coincidence? One potentially unintended consequence of the Evans ruling may be that the prosecution feel obliged to seek to admit more sexual history evidence of the complainant, to rebut similarity claims, for example, evidence of 'non-similar' sexual activity.

One further reason for the case being considered 'rare' by the Court of Appeal is that the complainant had no recollection of the events at issue and therefore did not give evidence of non-consent. The defence case was based on the testimony of Evans and the claim that if the similarity evidence was true and admitted, his account might be more credible. It is possible to argue, therefore, that the evidence was being admitted not to contest the complainant's credibility but to bolster the defendant's. In practice, however, the admission of evidence relating to the complainant's sexual past, including evidence of casual sex, excessive drinking and other salacious details of her lifestyle, is more than likely to have challenged her 'moral credibility' in the eyes of the jury, influencing the decision-making process. Her 'sexual character' was put in issue (implicitly), inviting the jury to allow this evidence to influence their decision. In addition, in admitting the evidence to support the credibility of the defence case, this necessarily means the evidence was adduced to demonstrate consent.

In sum, the Evans case does not simply open the 'floodgates' but risks a tsumani. Common, everyday sexual activity is at risk of being admitted, with an open invitation to the defence to trawl through a complainant's sexual history seeking 'similarities'. It focuses attention on the complainant's lifestyle and character, rather than on the defendant's actions at the time of the alleged offence. Further, by inferring consent from prior sexual activity with third parties, the Evans case fundamentally challenges an understanding of consent based on individual autonomy and free choice.

'Not an Issue of Consent': Reasonable Belief and 'False' Allegations

Reasonable Belief in Consent

Section 42(1)(b) specifically states that belief in consent is 'not an issue of consent'. This exception rides roughshod over the protections in s. 41 by permitting evidence to support a defence of reasonable belief which is otherwise excluded. In particular, if consent is recognised as being person-specific, it is difficult to see how any knowledge of sexual activity with third parties should be relevant to a defendant's belief in consent. Is it really reasonable to believe in consent on the basis that a complainant has consent to sexual activity with someone else? Indeed, research into the operation of s. 41 found 'considerable criticism' among barristers and judges regarding the belief in consent exception on the basis that it was 'too wide and "illogical"'. Further, the Court of Appeal in R v A was of the view that requiring a judge to sum up on the basis that evidence must go only to belief in consent, but not actual consent, owes more to 'Lewis Carroll than to sensible jurisprudence'. While Lord Clyde was open to the possible need to admit evidence relating to sexual activity with the accused in these circumstances, he took a contrary view regarding evidence with third parties: 'That evidence of sexual behaviour with other persons than the defendant should be so allowed seems questionable'. Not surprisingly, therefore, many other jurisdictions do not have an exception of such breadth.

This issue was raised in the Evans case, with the Court of Appeal suggesting that the 'similarity' evidence may also have been relevant to a defence of reasonable belief. It is, however, difficult to see how this defence could be raised if the evidence was unknown to the defendant at the time of the events in question and one of the two sexual acts deemed to satisfy the similarity test occurred after the alleged rape. Further, even had he known of the one example of the complainant's sexual activity with another person, is that a suitable or sufficient basis for a reasonable belief in consent? If so, this would be stating that a defendant can form reasonable belief in consent from his knowledge of one sexual act between the complainant and a different person that took place weeks prior to the alleged offence. This is surely an untenable basis for the law.

'False' Allegations

Restrictions on admitting sexual history evidence have often been resisted on the basis that they might exclude allegedly false complaints. Accordingly, when enacting s. 41, the government sought to reassure doubters by casting such evidence as relevant to credit and honesty, and either fell outside of the s. 41 scheme entirely, or was 'not an issue of consent'. Kelly et al.'s 2006 study into s. 41 found that searching for information about any previous complaints was a common practice for police, prosecutors and the defence. Scottish research has similarly suggested that the 'defence routinely constructed false allegation scenarios from almost any detail of sexual history'. The problem here is that an unproven complaint does not equate to a 'false allegation'. While this distinction may be noted, in some cases little attempt has been made to distinguish between these two different situations. There is some evidence of better practice, with the court in R v H examining the supposed evidence of false complaints and, in this case, finding no evidence of falsehood and therefore excluding the evidence. This approach should be mandated, as is the case in Michigan where evidence that an allegation is demonstrably false is required before admission. By ensuring reliability and relevance, this approach has significant advantages over the English practice which simply requires a judge to seek assurances from defence counsel.

Sexual Activity 'At or About the Same Time' as the Alleged Rape

The third exception to the general rule of exclusion is for evidence of sexual behaviour taking place 'at or about the same time' as the alleged sexual offence (s. 41(3)(b)). In Parliament, it was suggested that the time frame allowed should be no longer than 24 hours, and the House of Lords in R v A declined to interpret the provision more widely. While this does provide some limitation on the exception's scope, there is unfortunately no requirement that the evidence has a connection to the events at issue, meaning that entirely unrelated activities could be admitted as long as within this time frame. Unfortunately, therefore, entirely disconnected sexual activity with third parties can be adduced in evidence, as happened in R v Mukadi.

In this case, the Court of Appeal upheld an appeal against a rape conviction on the basis that evidence had been excluded at trial which rendered the conviction unsafe. The excluded evidence related to an incident earlier in the day where the complainant got into a car and exchanged phone numbers with a man other than the accused. Later the same day, the complainant met the appellant and the alleged rape took place. The trial judge had excluded the evidence with the third party stating quite rightly that 'this kind of evidence is exactly that which the statute is designed to exclude'. In particular, he continued that the fact that a person may be prepared to consent to sexual activity with someone else does not assist on the issue of whether she consented to sexual activity later in the day with the accused. Further, the evidence sought to be adduced was 'potentially character blackening'. The Court of Appeal disagreed, holding that excluding this evidence rendered the conviction unsafe. Di Birch was rightly trenchant in her criticism, suggesting that the effect of the judgment is that many women 'run the risk' of being 'assumed open to the advances of all and sundry the minute she admits that she is prepared to contemplate the prospect of sex with someone she finds attractive'. While some might argue that this is a 'rogue' decision, it remains a worrying example of the approach of the Court of Appeal permitting the use of third-party evidence. It underlines not just the specific problem with this exception not requiring a relevant connection to the events at issue, but the broader question of sexual history evidence with third parties being considered relevant to consent.

In the aftermath of the Evans judgment and consequent public furore, the government announced a review of s. 41 which is currently ongoing. In addition, a private members bill was introduced and separate amendments put forward in the Prison and Courts Bill, both of which aimed to strengthen the restrictions on the use of sexual history evidence. Due to the legitimate public concerns over the current state of the law, it is highly likely that further attempts will be made to change the law. In this light, this section proposes a number of reforms, most of which apply equally to sexual history evidence with the accused as well as with third parties.

Clarity of Purpose and Principle: Challenging the 'Twin Myths'

The Canadian provisions on sexual history evidence begin with clear statements of principle which seek to delineate the scope of the provisions. In particular, the Criminal Code states that sexual history evidence may not be admitted to support inferences supporting the 'twin myths', namely, that by reason of that sexual activity, it is more likely that the complainant consented or is less worthy of belief. An equivalent provision would significantly strengthen English law and restore the notion of consent as being person and situation specific, rather than capable of being inferred from previous conduct. While such a change should apply equally to evidence with the accused and third parties, a reform in relation to the latter would at least shift current understandings and undermine the impact of Evans. Such a legislative reform, therefore, would exclude any sexual history evidence with third parties which was seeking to infer consent. This would bring English law closer to other jurisdictions, such as Michigan, where all third-party sexual history evidence is excluded other than evidence of specific instances to show the source or origin of semen, pregnancy or disease. Any amended legislation could also state that, as a matter of principle, evidence should only be admitted in exceptional cases, helping to counter current practice.

Significant Probative Value Not Substantially Outweighed by Risk of Prejudice

As well as clarifying the rationales for restricting sexual history evidence, legislation should raise the threshold of admission before potentially highly prejudicial and distorting material is admitted. Section 41 currently requires that evidence is only admissible if the 'refusal might have the result of rendering unsafe a conclusion of the jury' or court, on 'any relevant issue' (s. 41(2)(b)). This is a low threshold given the highly prejudicial nature of sexual history evidence and when compared with alternatives in other jurisdictions. Canadian law, for example, provides that evidence may only be admitted if it has 'significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice' (s. 276(2)(c)). This is an important qualification as the thresholds are high: note the requirements of significant probative value, not substantially outweighed by risks. Further, this provision rightly emphasises that the risk of admitting such evidence is to the proper administration of justice, not only the privacy and dignitarian rights of the complainant. The inclusion of such a provision, properly recognised and utilised, might go some way towards enabling judges to take a more robust approach without fear of appeals.

Legal Representation for Complainants

Improving Definition of 'Sexual Behaviour'

The scope of any restrictions is dependent on the definitions used, specifically here the meaning of 'sexual behaviour'. Currently defined as 'any sexual behaviour or other sexual experience' (s. 42(1)(c)), this provision is potentially broad. And, in the context of seeking to limit the use of sexual history evidence, this is positive. For example, the trial judge in R v Mukadi excluded evidence of the complainant talking to and exchanging phone numbers with a third party where the defence had sought to imply this was preliminary sexual behaviour and/or prostitution.

Exclude Evidence Supporting Reasonable Belief in Consent

As noted above, there is widespread concern that sexual history evidence is permitted to demonstrate reasonable belief in consent, even where excluded on the grounds of actual consent. Another necessary reform, therefore, is to amend s. 42(1)(b) such that belief in consent no longer comes within 'not an issue of consent', particularly in relation to third parties.

Removing or Reforming the Similarity Exception

The most suitable reform regarding the current similarly exception is to remove it entirely on the dual grounds of the irrelevance of this form of evidence and its prejudicial effects. If the evidence is sufficiently probative and germane to a relevant issue in the trial, it will come within one of the other exceptions such as rebuttal evidence. The justification for this position was given long ago by Canadian Justice L'Heureux-Dube:

The exclusion of 'pattern' evidence and 'habit' evidence is not unconstitutional; the mythical basis of these arguments denies their relevance. 'Pattern of conduct evidence' usually occurs where the complainant has had consensual sexual relations in circumstances that look much like those supporting the assault allegation. Such evidence is almost invariably irrelevant. It is highly prejudicial to the integrity and fairness of the trial process and, in any event, is nothing more than a prohibited propensity argument. Arguments in its favour depend for their vitality on the notion that women consent to sex based upon such extraneous considerations as the location of the act, the race, age or profession of the alleged assaulter and/or considerations of the nature of the sexual act engaged in.

The less satisfactory option, but still better than the current position, is to strengthen the current exception, ensuring that only conduct indisputably unusual, and therefore highly unlikely to be coincidental, be admitted. Even in such cases, the approach in Canadian law should be taken, such that similarity evidence is not permissible to demonstrate consent (or belief in consent). What should be required is a demonstrable pattern of highly distinctive and unusual sexual behaviour. A pattern requires a significant number of incidents, more than one or two, to be sufficient to demonstrate consistent and characteristic behaviour. The behaviour must be highly distinctive and unusual, and therefore closely resembling the activities which form the subject matter of the charge. For the pattern to have any relevance or significant probative value, it would need to have a close temporal connection to the incidents alleged. Such an approach would return to the original parliamentary intention of the 1999 Act and should avoid the Evans trap whereby the more ordinary the behaviour, the easier it is to satisfy the similarity condition.

Strengthening Procedural Requirements

Suggested reforms therefore include an obligation for applications to be made pre-trial and in writing, with the prosecution required to respond to each application. A hearing should be mandatory to ensure a careful scrutiny of applications, with the complainant permitted to attend. Requiring a hearing will help to ensure that the prosecution actively consider (and challenge) the use of sexual history evidence. There must be stricter scrutiny of any late applications (which should still be in writing) with them only being accepted where the evidence was demonstrably not available at an earlier stage. Judges should be required to give reasons for their decision in writing and the prosecution (and complainant if granted additional rights) should have a right to appeal a decision to introduce evidence.

Until Evans, there was a common assumption that third-party sexual history evidence was irrelevant in modern day rape trials: an assumption that back in the 1970s, the Heilbron Report had effectively dealt with this issue and that while allowance was made for 'Romeo and Juliet' scenarios, in practice any dispute regarding sexual history now only concerned the relevance of evidence between the complainant and accused. The judgment in Evans and ensuing public furore reveals that no such consensus exists. Indeed, in reviewing the case law and research on the use of third-party sexual history evidence, the approach in Evans perhaps should not have come as such a surprise. The elastic nature of some of the concepts used in s. 41, together with an expansive interpretation of R v A, provides room for a permissive, Evans-style interpretation of the law which holds that sexual history evidence, even with third parties, may be relevant to consent.

However, this approach undermines the principles of autonomy and free choice which should underpin any notion of consent to sexual activity. Consent is to a particular person, not a situation or circumstance. Consent should also be sought and given afresh on each occasion of sexual activity. To hold otherwise, is to suppose that women will consent to sexual activity in the right set of circumstances, or that having once consented, it can be assumed that they will likely do so again. Further, in permitting sexual history evidence in a significant number of cases and often in highly prejudicial circumstances, the current law is failing to protect witnesses from unnecessary humiliation and distress which, in turn, hinders them from giving their best evidence and securing the truth-seeking function of the trial. In encouraging defence applications to adduce sexual history evidence (albeit implicitly), the law is risking discouraging complainants from reporting cases to the police and supporting prosecutions. In sum, the administration of justice is being adversely affected.

Further law reform is, therefore, urgently required. A comprehensive revision of the current law would enable reform from first principles, as well as bringing greater clarity and precision to unnecessarily complicated statutory provisions. Nonetheless, even in the absence of such wholesale reform, important amendments can be made to the current regime which would bring about valuable improvements. However, even if further reforms are enacted, vigilance will be required to identify and tackle any unintended consequences. For example, following the introduction of new measures to restrict sexual history evidence in Scotland, the volume of evidence admitted substantially increased. Bouyed by high success rates for applications to admit sexual history evidence, extensive written applications have become routine which, together with shared assumptions about relevance, have undermined the aims of the legislation. In a similar vein, international experience demonstrates that restrictions on sexual history evidence often lead to an increase in the use of other forms of potentially prejudicial evidence, such as medical or counselling records.

Ultimately, therefore, as well as legislative reform, it is wider societal change that is required. We need to challenge deeply embedded practices, prevalent across society and therefore also within the legal profession and judiciary, that result in women's sexual history and character influencing determinations of responsibility, blame and guilt for alleged sexual offending. We must redouble our efforts to focus investigations and trials on the defendant's actions and choices, rather than seeking excuses for their behaviour in the sexual history, character or lifestyle of complainants.

The author would like to thank Neil Cobb, Liz Campbell and the anonymous referees for their helpful comments and suggestions on an earlier version of this article, and to Tara Beattie for her research assistance.

Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

29.
The Ched Evans case provides a recent example of the enduring nature of negative attitudes towards sexually active women with social media being replete with disparaging references to the complainant as 'slag' and far worse: as disussed in Holly Baxter, 'Justice should never be done like it was in the Ched Evans rape trial'. The Independent. Available at: http://www.independent.co.uk/voices/ched-evans-footballer-rape-trial-acquitted-justice-woman-misogyny-consent-prison-walk-free-a7362276.html (accessed 27 July 2017).

34.
See, for example, L. Kelly et al., Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (Home Office Report: London, 2006); B. Brown et al., Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials (Scottish Office Central Research Unit: Edinburgh, 1992); Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (Department for Women: New South Wales, 1996); Z. Adler, Rape on Trial (Routledge and Kegan Paul: London, 1987); Regina Schuller and Patricia Hastings, 'Complainant Sexual History Evidence: Its Impact on Mock Juror Decisions' (2002) 26 Psychology of Women Quarterly 252. See also the judgment of L'Heureux-Dubé J in R v Seaboyer ([1991] 2 SCR 577 at 661-5) for a judicial discussion of these and similar US and Canadian studies.

53.
Rape Crisis Network Ireland, 'Previous Sexual History Evidence and Separate Legal Representation: RCNI Position Paper' (RCNI: Dublin, 2012). Available at: http://www.rcni.ie/wp-content/uploads/RCNIPreviousSexualHistorySLRPositionPaperMay12.pdf (accessed 27 July 2017). Another Irish study found this evidence used in 40% of cases: C. Hanly et al., Rape and Justice in Ireland: A National Study of Survivor, Prosecutor and Court Responses to Rape (The Liffey Press: Dublin, 2009).

54.
Secretary of State for Justice, L. Truss, 'A Speech on Criminal Justice Reform by the Secretary of State for Justice'. Available at: https://www.gov.uk/government/speeches/a-speech-on-criminal-justice-reform-by-the-secretary-of-state-for-justice (accessed 27 July 2017). Similar claims have been made in the national media, for example, that it is 'extremely rare for judges to allow the jury to hear details about the sexual history of a complainant': M. Dathan, 'Law Could be Changed to BAN Defence Lawyers using the Sexual History of Rape Complainants Following Ched Evans Trial', Daily Mail, 27 October 2016.

62.
For an alternative interpretation of the law and feminist rewriting of the judgment, see C. McGlynn, ' R v A', in R. Hunter, C. McGlynn and E. Rackley (eds), Feminist Judgments: from theory to practice (Hart: Oxford, 2010). An extract is available online: The Guardian. Available at: https://www.theguardian.com/law/2010/nov/10/rape-juries-feminist-judgment (accessed 27 July 2017).

89.
Yet, the judgment has been described as 'harsh' on the basis that the medical evidence 'does not merely go to the likelihood of the complainant engaging in casual sex but to her state of mind in engaging in that behaviour': N. Kibble, 'Case Comment: R v Harris' (2010) Criminal Law Review 54 at 54 and 59. Kibble also takes aim at the Canadian Supreme Court's insistence that sexual history evidence must not be admitted to shore up one of the 'twin myths', namely that evidence of previous sexual behavior is logically probative of consent (at 60). In making this criticism, however, he mis-quotes Justice McLachlin in R v Seaboyer, erroneously attributing to her Harriet Galvin's recommendation that the law should include similarity evidence as probative of consent. In fact, Justice McLachlin is clear that such (similarity) evidence 'cannot be used illegitimately merely to show that the complainant consented' (above n. 11 at 635).

99.
BBC News, 'Ched Evans: Nine admit naming rape victim on social media'. Available at: http://www.bbc.co.uk/news/uk-wales-north-east-wales-20207408 (accessed 27 July 2017).

106.
Indeed, one study suggests that it is the favourite position adopted in Wales: 'The UK's "favourite sex positions" revealed in new survey', The Independent, 11 February 2015, with 51% of respondents in Wales saying that 'doggy style' was their favourite sexual position. Another survey found this position to be the favourite of 57% of respondents in the north of England, Huffington Post. Available at: http://www.huffingtonpost.co.uk/entry/favourite-sex-positions-uk-london_uk_589c3fe4e4b0505b1f5aa9b5 (accessed 27 July 2017).

114.
As identified by the Women's Parliamentary Labour Party in an open letter to the Attorney General following this case: Rowena Mason, 'Female Labour MPs call for legal change following Ched Evans retrial', The Guardian. Available at: https://www.theguardian.com/society/2016/oct/23/female-labour-mps-write-to-attorney-general-over-ched-evans-case (accessed 27 July 2017).

115.
Echoing the experiences of victim-survivors over decades, the father of the victim in Evans said of his daughter's experience that 'it was like she was the one on trial': Sanchez Manning, 'Father of Ched Evans's accuser slams lawyers for "raping" his daughter by trawling through her private life', Mail on Sunday. Available at: http://www.dailymail.co.uk/news/article-3840045/They-said-daughter-asking-Father-Ched-Evans-s-accuser-slams-defence-lawyers-raping-daughter-trawling-private-life.html (accessed 27 July 2017).

140.
Liz Saville-Roberts MP introduced a private member's bill, Sexual Offences (Amendment) Bill (HC Bill 137). Available at: https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0137/cbill_2016-20170137_en_2.htm#l1g1 (accessed 27 July 2017). Harriet Harman MP proposed an amendment to the Prison and Courts Bill. Available at: https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/amend/prisons_rm_pbc_0323.1-2.html (accessed 27 July 2017).

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youth justice and criminal evidence act 1999

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Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials.

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Rape Victim Cross Examination Is Unfair! 

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Rape Victim Cross Examination Is Unfair! 

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Complainants in rape cases are being subjected to invasive and unfair questioning about their sexual history, according to a cross-party campaign supporting tighter restrictions on cross-examination in trials.

Two former Labour solicitor generals, Harriet Harman and Dame Vera Baird QC, are leading calls for reform of section 41 of the Youth Justice and Criminal Evidence Act 1999, which they say is deterring women from reporting attacks.

Concerns about the way the provision works emerged after acquittal of the footballer Ched Evans in 2016. Section 41 is supposed to protect vulnerable victims and limit the circumstances in which previous sexual experiences can be introduced into court.

Evans' retrial heard evidence from two other men who testified about the complainant's sexual preferences and the language she used during sex.

Last month, the Ministry of Justice (MoJ) and the Attorney General's Office published an analysis of more than 300 rape cases, showing that in 92% of them, no evidence of the complainant's sexual history was introduced by the defence.

The review suggested the bar for disclosure of such personal evidence was sufficiently high and the law struck a careful balance between the need to protect complainants and ensuring defendants receive a fair trial.

But the campaign to reform the law, which is holding a meeting in parliament on Monday, is publishing fresh evidence that it claims undermines the MoJ's position.

Research by Baird, based on court observers watching 30 rape trials over 18 months at Newcastle crown court, shows rape complainants' previous sexual history was used as evidence in 11 of the trials - equivalent to 37%. In the majority of these cases, disclosures related to sexual activity with men other than the defendant. In one trial, the defence barrister said it was to show "she is an adulteress".

A national survey of independent sexual violence advisers by the organisation Limeculture in 2017, looking at the application of section 41, found that in 28% of cases where previous sexual history was used as evidence, there had been no application, which the rules require.

Additionally, a review undertaken for the Fawcett Society by the former high court judge Dame Laura Cox, published earlier this month, found the section 41 procedure was often ignored.

Baird, the Northumbria police and crime commissioner, said: "We cannot allow rape trials to be inquisitions into the complainant's sex life. The fear of a complainant being confronted with evidence relating to sex with other men is, and has always been, a huge deterrent to reporting rape.

"We know the government's review does not reflect the situation in courtrooms across the country and call on them to use the opportunity of the domestic violence and abuse bill to protect complainants and ensure they are treated fairly in the courtroom."

Harman said: "This is not what women should have to put up with and it's not what parliament intended. It's not a fair trial if prejudicial, irrelevant evidence is allowed in.

"The government cannot go on ignoring the evidence of the scale and nature of the problem. We need a change in the law to ensure that trials are fair and that complainants do not face the ordeal of their sexual history being dragged through the courts."

The campaign to reform the law is backed by Women's Aid, Rape Crisis, End Violence Against Women, Victim Support, Limeculture and other organisations. It is supported by Labour, Liberal Democrat, Green and Plaid Cymru MPs.
Topics

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UK rape complainants 'face unfair questions about sexual history'

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Complainants in rape cases are being subjected to invasive and unfair questioning about their sexual history, according to a cross-party campaign supporting tighter restrictions on cross-examination in trials. Two former Labour solicitor generals, Harriet Harman and Dame Vera Baird QC, are leading calls for reform of section 41 of the Youth Justice and Criminal Evidence Act 1999, which they say is deterring women from reporting attacks.

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The Humans Rights Act 1998 set out different Articles which cover the basic human rights every person is entitled to. These were based on previous historical documents, such as, The Bill of Rights, the Magna Carta, and the Universal Declaration of Human Rights. Article 5 is the Right to Liberty and Security, and includes the lawful restriction that may be imposed. Article 6 is the Right to a Fair Trial, however there are additional rights implied by the European Court of Human Rights, such as equality of arms, for example. In the scenario Antons’ human rights were breached multiple times throughout.

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Article 5 and 6 of the ECHR set out the rights available to all people, Article 5 governs the rights of a person to liberty and security, whilst article 6 protects the rights to a fair trial; these were influenced by historical documents such as: the magna carter and the bill of rights which have now imbedded the core values into more modern documents to protect citizens.

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The Magna Carta established that ‘everybody is equal in the eyes of law’, which is consolidated by Habeas Corpus. This jurisprudence permeates into Article 5, which is the right to liberty and security and article 6; the right to a fair trial. Therefore, having the fundamental aim to protect an individual. By applying the law to the scenario it is evident that there has been breaches of both Article 5 and 6, as Government bodies have acted in an arbitrary manner, restricting Anton’s liberties.

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Article 5 is the right to liberty and security and Article 6 is the right to a fair trial. Some of the key elements for the articles are derived from historical documents such as the Magna Carta which established the need for ‘lawful judgement of peers’ which can be seen now in the use of a jury in court. The Bill of Rights sets out basic rights that the state cannot violate, such as; a defendant’s access to court and the limitation of police powers. This can be seen now when you are arrested, you must be told the reason in a language you understand. A new piece of legislation, PACE 1984 looks at the rules set around reasons for arrest, detention and charge, and that this must be declared in a language that the detainee understands.

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The European Convention on Human rights sets out the basic rights all people should be entitled to. Article 5 of the ECHR governs the right to liberty and security, for example it includes the rights of a detainee and when a person can be lawfully detained and restrictions on this. These rights derive from the Magna Carta (1215) which originally intended to prevent the King from abusing his powers. Elements from this have been brought into modern human rights, for example PACE 1984 restricts the powers of the police and sets out what lawful detention is, furthermore habeas corpus (developed by the magna carta) is upheld through the requirement for detainees to be brought before a judge and offer bail. Article 6 of the ECHR governs the right to a fair trial. It can be seen that elements of article 6 have been developed from the Universal Declaration of Human Rights (1945) such as the right to understand the court proceeding and be provided with an interpreter where necessary.

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Essay plan (AO1

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In the UK, human rights are protected by the Human Rights Act 1998. The Act gives effect to the human rights set out in the European Convention on Human Rights.

Article 8 - the right to respect for your family and private life, your home and your correspondence is one the rights protected by the Human Rights Act.

Read this page to find out more about what this right means under the Human Rights Act.

What are your rights under article 8?

Article 8 protects your right to respect for private and family life, your home and correspondence.

What's meant by private life?

Private life has a broad meaning. It means you have the right to live your life with privacy and without interference by the state. It covers things like:

your sexuality

your body

personal identity and how you look and dress

forming and maintaining relationships with other people

how your personal information is held and protected

What's meant by family life?

Family life includes the right to have and maintain family relationships. It covers your right not to be separated from your family and to maintain contact if your family is split up.

To decide if a relationship is covered by family life what matters is the closeness of the relationship rather than the legal status.

Relationships covered by family life include relationships between:

parents and their children, including illegitimate and adopted children

husband and wife as well as unmarried couples

siblings.

Same sex couples are protected under article 8 but their protection falls under their private life rather than family life.

What's meant by home?

Your right to respect for your home doesn't mean you have the right to housing but it protects the home you already have. It means public authorities mustn't prevent you from entering or living in your home. You also have the right to enjoy your home peacefully without intrusion by a public authority.

A public authority may need to take positive steps so you can peacefully enjoy your home - for example, by reducing air craft noise or protect your home from serious pollution.

What's meant by correspondence?

Correspondence includes things like:

Examples of article 8 breaches

Examples of where there could be a breach of article 8 include:

searches and surveillance of your home

separation of family members including deportation or removal of immigrants

care or adoption orders for children and interference with your parental rights

compulsory medical treatment or testing

if you're treated badly in a care home - if it's severe enough this could also be a breach of article 3

your right to privacy at home and at work - for example, phone tapping, the monitoring of emails and internet use, CCTV

if your personal information is disclosed to other people without your consent

the imposition of unreasonable dress codes at work

the quality and nature of the accommodation provided by local authorities and some housing associations

protection from noise and pollution nuisance.

Example
Your husband is suffering from dementia and needs to live in a care home. Your local authority has offered him a place in a care home which is too far away for you and the rest of the family to visit on a regular basis. You've asked for a place nearer to your home, but they've refused. This could be a breach of your and your husband's right to respect for family life under article 8. The local authority should consider your rights to a family life when offering your husband a placement.

You could raise the human rights issue with the local authority or make a formal complaint.

Can a public authority interfere with your article 8 rights?

Article 8 is a qualified right. This means a public authority can sometimes interfere with your right to respect for private and family life if it's in the interest of the wider community or to protect other people's rights.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

The EASS helpline can provide advice and information on human rights and discrimination issues.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

Liberty

For more information and advice on the different rights protected under the Human Rights Act go to Liberty's website at

British Institute of Human Rights

You can also find more information about human rights in Your human rights guides from the British Institute of Human Rights (BIHR) at

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right to respect for family and personal life

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right to respect for family and private life

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Your right to respect for private and family life

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In the UK, human rights are protected by the Human Rights Act 1998. The Act gives effect to the human rights set out in the European Convention on Human Rights. Article 8 - the right to respect for your family and private life, your home and your correspondence is one the rights protected by the Human Rights Act.

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Non disclosure of information challenge! Tariq v UK 

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Non disclosure of information challenge! Tariq v UK 

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Appointment of special counsel to investigate.  Secret information not disclosed to defendant.

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Defendant claimed he had not had an unbiased trial due to publicity and reporting by the media of the case. ECtHR held there was no breach!

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The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the Committee of Ministers (resolutions)

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The right to a fair trial is fundamental to the rule of law and democracy. It ensures that everyone has the right to a fair trial if they are charged with a criminal offence.

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There have long been attempts to "scrap" the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law. But while none have gained traction to date, parliamentarians have recently raised concerns that the government could be wavering in its commitment to the act post-Brexit.

The House of Lords' EU justice sub-committee said in January that it was worried to see the government change the wording of the political declaration it agreed with the EU, which sketches out a non-binding vision for what the UK's relationship with Europe will look like after Brexit.

In its draft form, the declaration said that the future relationship should incorporate the UK's " commitment" to the convention. However, by the time the final version was published in November 2018, that had changed to a commitment to " respect the framework " of the convention.

The committee wrote to the government for clarification and received a response from Edward Argar, the parliamentary under-secretary of state for justice, who stated that the government would not repeal or replace the act while Brexit is ongoing but that "it is right that we wait until the process of leaving the EU concludes before considering the matter further".

Responding publicly, committee chairman Helena Kennedy said that this was a "troubling" reply, noting: "Again and again we are told that the government is committed ... but without a concrete commitment".

Critics of the act say that reforms are needed to "restore" the supremacy of the UK courts, by limiting the interference of the European Court of Human Rights (ECHR) in domestic issues, such as voting rights for prisoners. This has long been a key issue for Conservative governments, which have wanted to ignore Strasbourg rulings. The idea is that the Human Rights Act could be replaced with a "British" bill of rights which would allegedly give the UK more control over the laws it implements.

The most cited criticism is that the act protects terrorists and hate preachers, such as Abu Hamza, who, at a time when he was advocating radical Islam and violence within UK cities, initially could not be deported on grounds that doing so would have contravened his right to freedom from torture.

The successes of human rights laws are less frequently celebrated, however. The act was relied upon by Hillsborough families, and the victims' right to life, in order to secure a second inquiry. Individuals pursuing their freedom to manifest their religion have used it to enforce their right to wear religious symbols at work. Victims of the Stafford hospital scandal used the law to secure an inquiry, which led to major improvements in accountability and public safety. And it has helped those seeking LGBTQ+ equality, as well as British soldiers in their challenge for improved resources.

Dispelling the myths

The problem is that there are several misconceptions fuelling the drive to change the Human Rights Act. First, the ECHR is unrelated to the EU. But mistaken links between the two are causing misplaced animosity towards the convention. The convention and its related institutions were regularly confused as being part of the EU during the referendum debates. Though the UK is due to leave the EU, it is not leaving - and does not necessarily have to leave - the Council of Europe. The council predates the EU, and has a larger membership (47 member states compared to the EU's 28). While the EU is concerned with matters such as the single market and free movement of people, the council addresses issues in relation to human rights and the rule of law.

Another point causing problems is the notion that the UK needs to move towards a supposedly "more British" and "less European" understanding of human rights. History tells us that in the aftermath of World War II the convention was actually partly written by the British. It was advocated by Winston Churchill and co-written by Conservative MP David Maxwell-Fyfe.

Britain was not just a supporter of the convention, but a leader in co-drafting the rules, and ensuring greater enforcement at a supranational level, via the European court. Furthermore, the UK was the very first country to ratify the convention in 1951. The irony is that the Conservative party is now questioning the role of human rights when it was the one that drafted the convention in 1950.

Even if the Humans Right Act was reformed or repealed now, the UK would still be subject to the convention as a signatory. UK citizens would still have access to the protections that the convention has introduced.

If the act is truly under threat of repeal, lessons must be learnt from Brexit. There needs to be an open and honest debate about what the act and convention actually do, and what they have achieved.

If, in repealing the act and introducing a " British bill of rights", the UK leaves the Council of Europe, it could cause a dangerous unravelling of the UK's constitution, and upset the devolution settlement. It could also remove another layer of international protection for the UK's constitutional values. To do so at a time when much uncertainty remains (following the UK leaving the EU) would have far reaching consequences for protecting citizens' rights against the state.

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UK Human Rights Act is at risk of repeal - here's why it should be protected

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There have long been attempts to "scrap" the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law. But while none have gained traction to date, parliamentarians have recently raised concerns that the government could be wavering in its commitment to the act post-Brexit.

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A NEW UPDATE!!!  TO SCRAP THE HRA OR NOT....THAT IS THE QUESTION.

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A NEW UPDATE!!!  TO SCRAP THE HRA OR NOT....THAT IS THE QUESTION.

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Our human rights are some of the most longstanding British traditions alive, often dated all the way back to Magna Carta. Somewhat conversely though, they feel continually under threat, with one expert saying recent questions over their future could leave us a "rung below Russia".
The Human Rights Convention has been part of most of our lives for as long as we can remember - or in my case, the entirety of my life. However, with the deadline for Brexit looming ever nearer, there are growing fears that vital protections could be sidelined after we leave the bloc.

Just last month, the House of Lords sounded the alarm about the security of the Human Rights Act (the mechanism that protects our rights here in the UK), after Government ministers failed to write off the chance it could be reviewed.

Meanwhile, a Westminister Hall debate on the importance of human rights has been scheduled by SNP politician Tommy Sheppard. But just how likely is it these protections could vanish, and how important are they really?

'You Don't Know What You've Got Till It's Gone'

Image Credit: Jack Satchell / RightsInfo

"Most people never really have cause to think very much about their human rights," Tommy Sheppard MP explains to RightsInfo. "They certainly never have to go to court to uphold them, and most people probably don't know somebody who has ever had to go to court to uphold their human rights. But, the fact that they're there gives us a better quality of life every day."

Most people don't know somebody who has ever had to go to court to uphold their human rights, but the fact that they're there gives us a better quality of life every day.

Tommy Sheppard MP

Speaking ahead of his debate on Wednesday, 13 February, he continues: "I think it's important for those people who want to protect those things to be very aware and very conscious that not everyone shares their point of view - there are people in the political debate who wish to see those protections weakened, and they will take the opportunity to do that if we just give it to them."

A Split Along Party Lines

Our human rights protections in the UK have undeniably been on shaky terms during the past few decades. The Human Rights Act (HRA) formally brought protections into British law under Tony Blair's premiership, however, almost immediately David Cameron's Conservative Government strongly rallied to repeal the Act and replace it with their own version.

In a world of Brexit and Trump, it's very difficult to predict [what happens next].

Elspeth Berry, Nottingham Law School

For the most part, plans to scrap or review the Act have been shelved while Parliament works on Brexit, however, as the deadline for leaving the EU approaches, concerns surfaced about what happens next, with few reassurances coming from Theresa May's Government.

'There Might Not Be The Political Energy'

"In a world of Brexit and President Trump, it is very difficult to predict," says Elspeth Berry, a reader in law at Nottingham Law School. "Parliament is likely to split much more on party lines for the repeal of the HRA than it has done for Brexit, but, of course, the Conservatives and DUP only have a small majority.

"I suspect that the Conservatives would have the numbers to get it through," she continues, "but there may not be the political energy until Brexit is fully concluded, and that could take years."

A debate on the future of the Human Rights Act is taking place in Parliament today. @TommySheppard (SNP): "There's a lot of unfinished business, particularly as concerns what happens after Brexit." pic.twitter.com/U7S6bCiJdo

- RightsInfo (@rights_info) February 13, 2019

Time and energy is a concern also shared by Gary McIndoe, a specialist immigration law solicitor at Latitude Law. "It would be a major change if it was all taken away, for sure," he tells RightsInfo. "There are some areas where there are already measures which would obviously replace the protections afforded by the HRA - data rights for example - but there are lots of articles in the convention.

"Trying to replicate all those protections in domestic law... It's partially there, but it would take creating a complete code, which would be years of work. And, you know, the Government has got a lot on its plate at the moment."

'It's Internationally Embarrassing'

Human rights can sometimes become a Westminister scapegoat. (Image Credit: Danny Romero / Unsplash)

However, while Elspeth and Gary remain unsure about both the likelihood and logistics of repealing the HRA, they're both clear about the wide-reaching effects of pulling out of the Act and Convention. Essentially, if the UK were to pull out of the Act, we'd still be bound by the Convention - but pulling out of this would cause real problems.

It puts us a rung below Russia and Azerbaijan and it's internationally embarassing.

Gary McIndoe, immigration law solicitor at Latitude Law

"Ducking out of the Convention on Human Rights is a massive step," adds Gary. "Some of the other countries who signed up to it and remain signed up to it are Russia and Azerbaijan. It puts us a rung below them and it's internationally embarrassing."

"Rather like the EU, it has been convenient for British politicians and some elements of the press to incorrectly blame everything on human rights," says Elspeth. "As a result, a lot of people don't appreciate how important those rights are to them, their families, and the way society works. They are about protecting what are, for most people, our most fundamental wishes."

So, where exactly does this leave us? Well, according to Tommy, it's all about making our views heard. "In the words of the Joni Mitchell song, you don't know what you've got till it's gone," tells RightsInfo. "There are some people who would very much like to see the repeal of the HRA, which is why debates like this one in Parliament are important to remind the Government of the strength of feeling there is."

About the Author

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'An International Embarrassment': Could The Human Rights Act Actually Be Scrapped?

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Our human rights are some of the most longstanding British traditions alive, often dated all the way back to Magna Carta. Somewhat conversely though, they feel continually under threat, with one expert saying recent questions over their future could leave us a "rung below Russia".

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In the UK, human rights are protected by the Human Rights Act 1998. The Act gives effect to the human rights set out in the European Convention on Human Rights.

Article 6 - the right to a fair trial is one the rights protected by the Human Rights Act.

Read this page to find out more about what this right means under the Human Rights Act.

What are your rights under article 6?

Article 6 protects your right to a fair trial. It also ensures you have access to the courts and gives you the right to bring a civil case.

Article 6 doesn't give you an automatic right to free legal representation in civil cases. But if your case is too complex for you to represent yourself properly, there may be a breach of article 6 if you don't get help with legal costs .

When is a trial fair?

A fair trial means you have the right to a hearing which is:

fair

public

heard by an independent and impartial court or tribunal

heard within a reasonable time.

If you're going to court, this means you have the right to - for example:

present your case before a decision is made

see your opponent's documents and evidence

be given reasons for the decision

have your case heard without excessive delays.

What kind of hearings or proceedings are covered by article 6 ?

Article 6 covers both criminal and civil proceedings. Criminal and civil proceedings have a different meaning under the Human Rights Act than under UK law.

Under the Human Rights Act, criminal proceedings include:

when you're being prosecuted for a criminal offence

other proceedings which aren't normally considered criminal in the UK - for example, court proceedings because you've not paid your council tax or for contempt of court.

Civil proceedings include things like employment disputes, planning decisions, contract disputes and family or property disputes.

Article 6 applies to hearings which take place in a court, like criminal trials and civil court cases. It also applies to some proceedings and decision making processes outside of the court - for example, disciplinary hearings and planning proceedings.

Additional rights in criminal proceedings

If you're involved in criminal proceedings you have more rights under article 6, including:

the right to be presumed innocent until proven guilty - this means it's the prosecution who must prove you're guilty

the right to know why you're being prosecuted in a language you understand and the right to a free interpreter in court if you can't understand the language used

the right to defend yourself and the right to legal aid if you can't afford legal representation

the right to be in court during the trial

the right not to say anything that may incriminate you.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

The EASS helpline can provide advice and information on human rights and discrimination issues.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

Liberty

For more information and advice on the different rights protected under the Human Rights Act go to Liberty's website at

British Institute of Human Rights

You can also find more information about human rights in Your human rights guides from the British Institute of Human Rights (BIHR) at

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In the UK, human rights are protected by the Human Rights Act 1998. The Act gives effect to the human rights set out in the European Convention on Human Rights. Article 6 - the right to a fair trial is one the rights protected by the Human Rights Act.

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Government plans to scrap the Human Rights Act have been shelved until the UK's arrangements for leaving the European Union are confirmed, the minister for courts and justice has said.

In both its 2010 and 2015 manifestos, the Conservative Party pledged to replace the act with a "British Bill of Rights".

"This will break the formal link between British courts and the European Court of Human Rights and make our own Supreme Court the ultimate arbiter of human rights matters in the UK," it said.

Justice Secretary Liz Truss said last August that the government was committed to the pledge, but yesterday in the House of Commons, it emerged the new legislation could take a while.

Justice Minister Sir Oliver Heald said: "We are committed to reforming our domestic human rights framework and we will return to our proposals once we know the arrangements for our exit from the European Union."

He added it would be "some time" before a meeting is held with the Scottish justice minister to discuss repealing the act north of the border, as the government was prioritising Brexit.

"I think it important for us to sort out the EU side of matters and the exit from the EU before we return to that subject," he said.

Heald's comments raise the prospect that the act "may not be dealt with until after the general election in three years' time", says the Daily Mail. "But it spares Prime Minister Theresa May the potential headache of a troublesome parliamentary battle when she is focused on getting the best deal for Britain after the historic Leave vote".

What is the Human Rights Act?

Introduced by Labour with cross-party support in 1998, the act protects 15 fundamental rights and freedoms, including the right to life, privacy and free speech, which are all based on articles of the European Convention on Human Rights. The freedoms must be upheld by all public bodies and British courts and tribunals must interpret legislation in a way that is compatible with the rights enshrined in the convention.

Why do the Tories want to get rid of it?

Scrapping the act will break the formal link between British courts and the European Court of Human Rights and stop the act being "misinterpreted", say the Conservatives. They argue foreign nationals who have committed serious crimes are able to use the freedoms guaranteed under the Human Rights Act to justify remaining in the UK. They have also expressed "mounting concern" at Strasbourg's attempt to overrule decisions made by parliament and the courts, such as lifting the ban on prisoners' voting rights or banning whole-life sentences for serious crimes.

What would replace it?

The Conservatives plan to introduce a "British bill of rights" rooted in "British values". The Human Rights Act contains a "laudable" set of principles for a modern democratic nation, says the party, and it does not plan to introduce new basic rights. Instead, its aim is to "restore common sense and tackle the misuse of the rights contained in the Convention". The Conservatives published a short strategy paper outlining some of the key ideas in 2014 and promised to publish a full draft bill before the 2015 general election, but it never materialised.

What will this mean in practice?

The Conservatives argue their reforms will ensure the European Court of Human Rights will no longer be able to overrule judgments made in British courts and will make "the Supreme Court supreme". Former Liberty director Shami Chakrabarti said the proposal "is the gravest threat to freedom in Britain since the Second World War".

What's standing in the way?

The Justice Secretary faces several serious stumbling blocks, including the Commons, the House of Lords and the devolved assemblies. "Only a very brave betting man would put money on the Tories accomplishing it," says Ian Dunt, the editor of politics.co.uk.

The Commons: Commentators predict a backbench Tory rebellion against the bill and with May only holding a wafer-thin majority in the Commons, "room for parliamentary manoeuvre could easily be restricted by a relatively small number of rebels", says The Guardian. Several prominent Tories have already voiced their criticism, including former justice minister Ken Clarke and former attorney general Dominic Grieve QC, who warn the move could undermine the rule of law and risks putting the UK into conflict with the European court.

The Lords: The Tories are outnumbered in the House of Lords. "Now that the coalition is over, we can expect that Lib Dem voting block to shift firmly over to the opposition side on matters like this," says Dunt.

The Scottish Parliament and the assembles of Wales and Northern Ireland: Scotland's First Minister Nicola Sturgeon has made her views on the matter clear and vowed to oppose the plans, something which could lead to a "complete standoff" between Westminster and Holyrood, a source within the SNP said. The party has been holding secret talks with Tory backbenchers in order to boost cross-party opposition, the source added.

The plans also contravene various national agreements. The Sewel convention dictates that parliament cannot legislate for devolved matters without the consent of Scotland and Wales and to push the bill through against this "would be horrific", said one legal expert. In Northern Ireland, abolishing the act would place the UK government in breach of the Good Friday Agreement, a direct violation of international law that would "plunge the UK into a constitutional crisis", says The Guardian.

To get around this, the Prime Minister could choose to apply the law only to England, says Dunt. "Given how immoveable the situation seems, that might be the only viable option," he adds. But that could set a dangerous precedent, stripping some citizens of rights held by others in the union.

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Government plans to scrap the Human Rights Act have been shelved until the UK's arrangements for leaving the European Union are confirmed, the minister for courts and justice has said. In both its 2010 and 2015 manifestos, the Conservative Party pledged to replace the act with a "British Bill of Rights".

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https://www.amnesty.org.uk/blogs/campaigns/human-rights-act-still-high-alert

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Read the word document uploaded below and complete the tasks.  There are video links on the topic located on the right hand side of the document.  

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Read the word document uploaded below and complete the tasks.  There are video links on the topic located on the right hand side of the document.  

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Podcast Link - Nature of Law and Human Rights 

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Podcast Link - Nature of Law and Human Rights 

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https://www.bbc.co.uk/programmes/b04p270w

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ECHR - What it does;Who it protects; Why it matters....

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ECHR - What it does;Who it protects; Why it matters....

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The European Court Of Human Rights Uncovered

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What the European Court Of Human Rights does, who it protects, why it matters. Uncover all the information with our sharable infographic.

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So, how has the European Court of Human Rights changed our lives in the United Kingdom? Here are 11 times. How many did you know already?

1. The law protects the rights of journalists not to have to reveal their sources

In the 1996 case of Goodwin v UK, a journalist was convicted of contempt of court for refusing to reveal a whistle-blowing source for a story. It was unfair to punish journalists for doing their job to protect commercial interests. The judgment meant that courts were far less likely to force journalists to reveal their sources, whatever the justification. Read the whole story.

2. Openly gay people can serve in the Armed Forces, and we beat the Americans by a decade on that

Four gay men and women were dismissed from the Armed Forces. In 1999, the European Court decided their right to privacy had been violated. This case led to the armed forces withdrawing the long-standing ban on homosexuals serving, 10 years before a similar ban was finally removed in the United States. Read the whole story.

3. The police can't keep innocent people's DNA forever

The police were taking DNA profiles of individuals arrested for recordable offences, even if people were acquitted. They wanted the samples destroyed. In the 2008 case of S and Marper v UK, the European Court found the policy and refusal to destroy the samples a violation of the applicants' right to respect for private life. The result was the Protection of Freedoms Act 2012, which means the police have to destroy biometric samples will be destroyed for minor offences after a person is found innocent. Read the whole story.

4. Homosexuality isn't illegal any more

An Irish man had been interrogated by the local police on his sexual activities - he was gay and Northern Ireland's law punished homosexuality. In 1983, he won his case. His right to privacy had been breached. Shortly afterwards, Northern Ireland decriminalised homosexuality. Read the whole story.

5. Phone hacking is a crime (it didn't used to be)

Before 2000, it wasn't illegal to spy on people's communications on private networks, that is not British Telecom. It was the European Court that raised the alarm. In 1997, the court was critical of UK interception law in the case of Halford v The United Kingdom. Alison Halford, an Assistant Chief Constable with the Merseyside Police (and the most senior police woman in Britain) had sued the police sex discrimination. She alleged that calls made from her home and office phones had been hacked into by the police looking for information to be used against her in the case. The court said her right to an effective remedy had been breached.

The result was the Regulation of Investigatory Powers Act 2000, which modernised data interception law andmade it illegal for any person intentionally and without lawful authority to intercept any transmission on a public orprivate. So that's why phone hacking is illegal.

6. The police can't stop and search us without reasonable suspicion. Which makes sense.

Two protesters were stopped and searched, without any grounds for suspicion, by the police. In the case of Gillan and Quinton v UK European Court of Human Rights said this was a violation of their right to privacy. The UK government had to review its anti-terrorism law and changed the law too. Read the whole story.

7. The police need a warrant if they want to tap our phones. Phew.

This was the 1984 case of . A businessman had his phone tapped by the police without a warrant. The European Court of Human Rights said this was a violation of his right to privacy. So the government introduced the Interception of Communications Act. A warrant is now needed for phone tapping by police and security services. Read the whole story.

8. Beating up your children is against the law. Which is good.

You used to be able to beat up your child, legally. Now you can't. In the case of 1998 case of stepfather beat his stepson with a cane, causing him bruising. His defence was that "reasonable chastisement" was necessary to control the boy. The court said this was inhumane and degrading treatment. Which is right, isn't it? A v UK, aRead the whole story.

9. Human trafficking and domestic slavery has just been made illegal. And rightly so.

A Ugandan woman was forced to work without breaks or time off. In the 2012 case of C.N. v UK, the UK was criticised for not outlawing forced labour and domestic slavery. The case led to the 2015 Modern Slavery Act. Read the whole story.

10. Our employers can't spy on our emails without telling us

Mrs Copland found out that her employer, the principal of Carmarthenshire College in Wales had been spying for years on her correspondence, her movements and internet usage. The employer was trying to find out whether she was in an inappropriate relationship with the director. In the 2007 case of Copland v UK, the European Court agreed with Mrs Copland that there wasn't enough legal protection for people in her situation. In fact, there was no law regulating the monitoring of employees' emails. That changed because of the judgment. Read the whole story

11. Newspapers have freedom to report legal cases if it's in the public interest

During a legal case about the Thalidomide disaster, the High Court stopped a newspaper from publishing articles in support of the victims. In the 1979 case of Sunday Times v UK, the European Court said that violated the newspaper's right to freedom of expression. The significant public interest outweighed the need to uphold and injunction. Read the whole story.

About the Author

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11 Times The European Court of Human Rights Changed The UK

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In the 1996 case of Goodwin v UK , a journalist was convicted of contempt of court for refusing to reveal a whistle-blowing source for a story. It was unfair to punish journalists for doing their job to protect commercial interests.

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Video Explainer: Why The Human Rights Act May Not Be Replaced Post-Brexit

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Video Explainer: Why The Human Rights Act May Not Be Replaced Post-Brexit

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Explainer: Why plans for a British Bill of Rights may be scrapped

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This week, Justice Secretary Michael Gove gave some more information about the government's long-awaited (and much delayed) plan to repeal the Human Rights Act and replace it with a British Bill of Rights. He was giving evidence to a Parliamentary Committee on EU justice with his junior minister Dominic Raab.

He said that there were 'no plans' for Britain to leave the European Convention of Human Rights (ECHR). He also insisted that reforms would be minimal and spoke about prioritising the right to free speech over privacy.

There's been a lot of talk about the British Bill of Rights over the last couple of years. We thought it would be good to stop and figure out where this latest revelation leaves us.

So, what were the original proposals for a British Bill of Rights?

In October 2014, the Conservatives said that a British Bill of Rights would include the rights contained in the European Convention (so the same ones that are in the Human Rights Act) but also "restore common sense".

By this they meant putting tighter restrictions on the rights of various people, including foreigners who commit serious crimes in the UK, illegal immigrants claiming the right to family life and those claiming against the British Armed Forces for things that happened abroad.

Crucially, they promised to "break the formal link" between Britain and the European Court of Human Rights in Strasbourg. Serious consideration was given to leaving the European Convention on Human Rights completely. These were radical proposals.

What did people think of those proposals?

There was some support for the proposals. But it was not universal. Tory MP Dominic Grieve, who was sacked as Conservative Attorney General Attorney General due to his opposition to the plans, described them as ' devastating'. There was also opposition from the Scottish and Welsh governments.

What happened since then?

The Grayling plan has drifted off, somewhat. The Conservative election manifesto was more vague (human rights only made it to page 60). And contrary to what the Grayling proposal promised, we haven't seen any draft legislation yet. The 2014 proposals said a draft bill of rights would be published "shortly". It didn't appear. After the 2015 election, the government appeared to promise the change would happen in the first 100 days. After opposition from Tory backbenchers and the devolved nations, it didn't. On Tuesday, Michael Gove said he was hoping to consult on legislation "soon".

And then, a few weeks ago, Mr Gove let slip that the process had become entangled with the debate over whether the UK should leave the European Union, with the Bill of Rights potentially turning the Supreme Court into a "constitutional court" which could overrule EU laws - see more on that from Prof. Mark Elliott.

So, what did Mr. Gove tell us?

There are no plans to leave the European Convention on Human Rights. Not a new announcement, but nonetheless an important confirmation.

Existing European Convention rights will be affirmed' as 'British' rights. At the moment the government envisages "all" the convention rights to be "affirmed in any British bill of rights". We don't know what that means yet.

Gove touched upon the "bad name" human rights laws have in the UK, saying they are "seen as something done to British people as a result of foreign intervention" and that "part of the purpose of the British bill of rights is to affirm that things like a ban on torture or the right to a fair trial are fundamental British rights."

A British Bill of Rights will not "derogate [move away from] absolutely from any of the [ECHR] rights" but would seek to change the emphasis of some of them. Little detail was given, but Gove said he wanted to:

Where does that leave us?

Lord Richard questioned "what on earth" Mr Gove planned to repeal the Human Rights Act for, if the changes are so minor. The Government will also run into trouble with the devolved nations over this. Is it worth it?

It was interesting to see how much Mr Gove is motivated by clearing up the apparent "bad name" that human rights have. It is debatable whether a British Bill of Rights is the best way to do this, as Helena Kennedy QC and Philippe Sands QC argued back in 2013 after they took part in the Commission on a Bill of Rights.

Ultimately, until we see the draft bill, we just don't know what's going to be in it.

Only the legislation itself will show us if it would simply make the rules more sensible and clear, or if it will reduce human rights protections.

But one thing we can be sure of: RightsInfo will keep you posted.

About the Author

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What's Going On With The British Bill of Rights? - RightsInfo

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This week, Justice Secretary Michael Gove gave some more information about the government's long-awaited (and much delayed) plan to repeal the Human Rights Act and replace it with a British Bill of Rights. He was giving evidence to a Parliamentary Committee on EU justice with his junior minister Dominic Raab.

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It's a decision that will have a huge impact on our rights and responsibilities in the UK and so shouldn't be made lightly. We've rounded up the brightest and best links on the internet to help you form your opinion ahead of the big day.

A quick refresher

The first thing you need to know is that our human rights are protected by a complex collection of laws and treaties. The treaties which we have signed up to by being part of the EU are particularly important in ensuring a basic level of protection in, for example, employment rights. Those employment rights won't all disappear the instant we leave the EU. But the strong international backstop which up to now has prevented governments chipping away at, for example, maternity leave, would no longer exist.

Then there is the European Convention on Human Rights (ECHR). This is a separate treaty which the UK signed up to before the EU existed. We would still be signed up to it if we left the EU tomorrow. And (and!) even if we left the ECHR, which isn't on the table at the moment, the Human Rights Act would still protect human rights through UK courts - see more in our explainer.

But. If we Brexited, and particularly with the Eurosceptic wing of the Conservative Party running the show, the direction of travel would be away from international organisations and agreements. Those organisations and agreements have been central to setting basic internationally recognised human rights standards, whether in employment, criminal justice, discrimination, children's rights or refugee law. Make no mistake, the medium and long-term effects of Brexit on rights protections in the UK could be very significant indeed.

The best links on the internet right now

Let's get to those links.

The Independent's Q&A Will we gain or lose rights by leaving the European Union? is a useful starter guide on the EU's Charter on Fundamental Rights, what the EU has done for us, and why, on balance Home Secretary Theresa May thinks we should stay in the EU.

What Does Brexit Have To Do With Human Rights? Dr. Tobias Lock takes us through the implications of Brexit for human rights in the UK, concluding that we would lose data protection and children's rights if we left the EU, and the fate of anti-discrimination law would be uncertain.

Brexit: What It Does and Doesn't Mean for Human Rights, Heather McRobie argues that although Brexit would be damaging for human rights, staying in shouldn't be a vote for the status quo but an opportunity to challenge the EU's own less than perfect human rights record.

Leading disability charity, the Papworth Trust, created this handy booklet on the impact of EU law on disability rights. In their first chapter, they highlight.

As a result of EU directives and regulations, disabled people are considered to be better protected from discrimination.

The national Trade Union Congress (TUC) says Brexit could risk "legal and commercial chaos" and would cause years of uncertainty for employers and workers. Citing a legal opinion they commissioned to leading employment barrister Michael Ford QC, they emphasise the uncertainty a Brexit result would have on workers' rights, saying:

All the social rights in employment currently required by EU law would be potentially vulnerable.

A separate post by TUC describes a new report by GQ Employment Law, which concludes that even if Britain negotiated a Brexit deal similar to Norway (traditionally thought to best the most worker-rights friendly option), ' some important employment rights will still be at risk.'

The Oxford Human Rights Hub has a suite of posts on the implications of Brexit, including:

The Immigration Law Practitioners' Association has published a series of briefings on key aspects of the Brexit debate by some of the UK's top lawyers and academics specialising in EU free movement and migration law. These cover access to benefits, free movement, and that all important Brexit buzzword - sovereignty.

Employment lawyer, Sean Jones QC, has written an amusing and informative post in response to a misleading pro-Brexit graphic someone posted on his Twitter timeline. Dissecting the rogue Tweeter's apparently sound legal arguments bit-by-bit, Jones highlights how the meme ignores any of the legal protections that are EU in origin, and recommends the creator reads Michael Ford QC's more compelling account (listed above) instead.

Click here for our Explainer on the difference between the European Charter of Fundamental Right and the European Convention on Human Rights.

And here for our Infographic showing certain politicians' views on Brexit.

And here for our post on the TUC's report showing the employment rights at risk if we leave the EU.

About the Author

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It's a decision that will have a huge impact on our rights and responsibilities in the UK and so shouldn't be made lightly. We've rounded up the brightest and best links on the internet to help you form your opinion ahead of the big day.

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The country is going through a constitutional storm. Will human rights reform mean the end of the United Kingdom?
The government has suggested in the past that it will repeal the Human Rights Act and the new Prime Minister has been heard to advocate for withdrawal from the European Convention on Human Rights, an international treaty. After the tumult of the Brexit referendum and a clearly divided country, we look at the part Scotland, Wales and Northern Ireland could play in any suggested changes.

Let's start with devolution

Before we get to human rights, it is important to understand how the relationship between the UK's constituent parts has been changing in recent years. Devolution is the act of transferring law-making power to particular regions within a country. In the UK, this is mainly by transferring powers from the UK Parliament in Westminster to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. These are the law-making bodies for Scotland, Wales, and Northern Ireland but each have different law-making powers. Taking each in turn...

Scotland

The Scottish Parliament was created by the Scotland Act 1998. It was given powers to make laws on all matters, except specific areas reserved for the UK Government in Westminster (for example, foreign affairs). The largest party in the Scottish Parliament will usually form the Scottish Government, currently the Scottish National Party.

Wales

The Government of Wales Act 1998 created the National Assembly for Wales (the law-making body) and the Government of Wales Act 2006 created the Welsh Assembly Government. The National Assembly for Wales only has the power to legislate on specific issues that have been devolved, so the opposite structure to Scotland.

Northern Ireland

The Belfast (Good Friday) Agreement was a peace agreement, intended to bring together the nationalists and unionists peacefully to govern Northern Ireland after nearly thirty years of conflict. It created a new Northern Irish Assembly (the law-makers) and Northern Ireland Executive (the governing body).

The scope of devolved powers is found in Northern Ireland Act 1998. This sets out:

transferred matters - dealt with by the Northern Ireland Assembly

excepted matters - dealt with by Wesminster

reserved matters - usually dealt with by Wesminster, but the Northern Irish Assembly can legislate on them with the consent of the Secretary of State

That's law making...what about the courts?

Although not strictly 'devolution', Northern Ireland and Scotland also have different legal systems to that of England and Wales. However, the UK Supreme Court in London is the highest court for all UK countries and issues (apart from most Scottish criminal matters, which are ultimately heard by the High Court of Justiciary). The Supreme Court also hears 'devolution issues'; for example, whether or not Bills of the Scottish Parliament or Northern Irish Assembly are within their remit.

What Does Devolution Have To Do With Human Rights?

So now we get to the nub of things. The Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law. It means that public bodies in the UK must uphold human rights, and can be challenged in British courts if they don't. Importantly, the HRA applies to all regions of the UK.

But, in the 'devolved nations' this goes even further

Under the Scotland Act 1998, Northern Ireland Act 1998 and the Government of Wales Act 2006, laws made by the devolved legislatures that are incompatible with human rights are simply 'not law'. So, for example, if the Scottish Parliament tried to pass a law saying that gay people could not serve in the army, this law would be invalid, as the European Court of Human Rights (which determines the scope of human rights law) has made it clear this would breach human rights.

This is a stronger protection than that given under the Human Rights Act. If an Act of UK Parliament is contrary to human rights, a judge can only make a ' declaration of incompatibility ', which advises Parliament to change the law. The law itself remains valid until Parliament decides to change it (and it is under no legal obligation to do so).

Why does it matter now?

Theresa May recently promised that if she becomes Prime Minister she would not pull the UK out of the ECHR. But given this is a U-turn on years of anti-ECHR sentiment, and appears to be based on pragmatism rather than principle (her reasoning was she wouldn't have the votes in Parliament), i't's worth looking at what might happen if Theresa May or any future prime minister did decide to pull the UK out of the ECHR.

First, t he UK Parliament could repeal (that is, get rid of) the HRA. This would mean that Acts of the Westminster Parliament and public bodies in England could no longer be challenged in UK Courts on human rights grounds.

But, the ECHR would still be incorporated into Scottish, Welsh and Northern Irish law through their respective devolution laws. To un-incorporate the ECHR completely, the Westminster Parliament would have to change the devolution laws. This would be difficult because of the lack of public backing for the changes. But also because of two things:

The first thing: consent of the devolved states and the Sewel Convention

When legislating on devolved matters, the UK Parliament needs the consent of the devolved nation. This is known as the Sewel Convention, because when the Scotland Act was passed, Lord Sewel, in the House of Lords stated that the UK Government:

would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.

Also applying to Wales and Northern Ireland, it requires a ' Legislative Consent Motion' from the Parliament/Assembly of the relevant region for the UK Parliament to pass an Act that will affect Scotland, Wales or Northern Ireland in a 'devolved matter'. This is now part of the Scotland Act 2016 and the Wales Bill 2016 currently going through Parliament.

But...note the careful wording of the Act and Bill:

...it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly.

In other words, the UK Parliament does not legally need the consent of the devolved region. This means to act against it would be politically frowned upon but not unlawful.

The second thing: the Good Friday Agreement

The Good Friday Agreement incorporates the ECHR into Northern Irish law. It also appears to require the standards of the HRA to remain in effect to ensure compliance with the ECHR. This means that Northern Ireland could not leave the ECHR without the Good Friday Agreement being amended - with potentially harmful effects on the Northern Irish peace process.

That's the ECHR. What about EU rights?

We explained in this post how the European Union (the EU - distinct from the ECHR) has also protected rights, in particular: equality and protection from discrimination, workers rights and privacy. As EU law, these apply equally across the UK, including the devolved states.

However, although the devolved nations have different attitudes towards the EU, with the majority of people in Scotland and Northern Ireland voting to remain in the EU in the referendum, it is unlikely that such preferences would be able to prevent a Brexit for those countries (as is explained here).

A delicate balance

Human rights and the UK's membership of the European Convention on Human Rights are delicately tied to the devolution of power from Westminster to Scotland, Wales, and Northern Ireland. Any move by the Westminster Parliament to diminish the UK's relationship with the ECHR is likely to be met with resistance from the devolved nations. Given the already divided opinions made clear by the referendum, any further shake ups could have very serious effects on the 'unitedness' and stability of the United Kingdom.

About the Author

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Could Scotland, Wales and Northern Ireland Stop Westminster Changing Human Rights Laws?

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The country is going through a constitutional storm. Will human rights reform mean the end of the United Kingdom? The government has suggested in the past that it will repeal the Human Rights Act and the new Prime Minister has been heard to advocate for withdrawal from the European Convention on Human Rights, an international treaty.

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Rights Info - An Easy Guide to Human Rights

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Rights Info - An Easy Guide to Human Rights

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Additional reading

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Read the word document below.
Summarise your reading onto one A4 page.  This is going to be difficult!  Good luck :)

You can use charts, words, images etc.