Monthly Archives: April 2012

Tweet Your Victim/Facebook Your Perpetrator

While the appalling behaviour of Twitter users in the Ched Evans case has caused an uproar in the UK, there is a contrary case taking place in Germany. The recent social media use in the UK saw a rape victim being named on Twitter, whereas the German case involved a woman naming a man who had been harassing her by sending her sexually explicit messages. Ariane Friedrich an olympic high jumper who trained as a police officer, posted the name and location of the man who had been sending her the messages on Facebook. This has caused a huge discussion in Germany, where privacy laws are known to be particularly stringent.

The man allegedly sent her images of his genitals with the sexually explicit/suggestive message stating that he had “just showered and shaved”. Ms Friedrich became enraged and posted his name and location on Facebook, adding that she will be filing a complaint with the police shortly.

Since she posted the message 2200 people have clicked the “like” button under the post along with 400 comments. In a later post Ms Friedrich explained  that she has “carefully read” through both supportive and critical comments. She added that “of course it had been a big step to make such a vulgar e-mail public”, but she said that this is not the first time she has been insulted and sexually harassed. She also stated that she had previously had a stalker. She claimed that she now felt it was time for her to act and to defend herself, even this posting sparked a huge reaction leading to a further 1100 comments. While some argue that her behaviour was completely justifiable, others claim that her self-administered justice amounts to an erosion of the law.

Her liability would depend on whether her claims are genuine or not and whether the named man actually sent those messages. If her assertion is proven to be true, then she will not be liable for defamation or libel. However if this is not the case, the situation could become more complex. In a well known German tabloid, the man (described in the German media as ‘a man with the same name as the alleged author to the messages’) claimed he had been hacked and has closed his Facebook account as a result. However it is probably unlikely that a judge would make the assumption that Ms Friedrich is accusing an innocent person. Therefore seems unlikely that she will be charged in relation to defamation. However she could be liable under civil law as she breached his right to privacy by making his personal details public. If the named man went to court over the issue he could possibly win in a civil claim, if the circumstances surrounding the publication of his details had sufficient gravity.

While the Friedrich case is very different to the Ched Evans/Twitter case, one case infringing the victims privacy while the other concerns the alleged perpetrator.  Germany has much stricter privacy law than the UK, mainstream media are much more restricted than in the UK. Naming a rape victim, when they should have anonymity for life raises serious concerns about protecting victims. The contrast between these two cases highlights different aspects of privacy law and the ethical minefield surrounding social media.

Guest Post by Professor Martine Herzog Evans: Is Prison Leave a Privilege?

Martine Herzog-Evans is a Law Professor at the University of Reims, France and specialises in criminology and prison law.

The Case - European Court of Human Rights, Grand Chamber, Boulois v. Luxembourg, applic. n° 33575/04

Mr Boulois, was imprisoned in Luxembourg, he filed several requests in order to obtain prison leave, which were all rejected by the Prison Board. He then lodged an application for judicial review with the Administrative Court. However, the Administrative Court denied it had jurisdiction to examine the application. In his application against the Grand Duchy of Luxembourg, Mr Boulois claimed that Article 6§1 of the ECHR had been violated arguing that he did not have access to a fair hearing or to a court. After the First Section of the ECtHR ruled in his favour, the government of Luxembourg requested for the case to be referred to the Grand Chamber.

The Ruling

« The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute… over a “right” which can be said… to be recognised under domestic law» (§90)

«  the Court observes that section 6 of the 1986 Law defines prison leave as… a “privilege” which “may be granted” to prisoners in certain circumstances» (§96)

« Thus it was clearly the legislature’s intention to create a privilege… the present case concerns a benefit created as an incentive to prisoners ». (§98)

« … the applicant could not claim, on arguable grounds, to possess a “right”» (§101)

« Furthermore… although the Court has recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment… neither the Convention nor the Protocols thereto expressly provide for a right to prison leave» (§ 102).

« There has therefore been no breach of Article 6 » (§105).

Observations

In some European states, release and prison management decisions such as whether to grant prison leave, are deemed ‘administrative’ and are made by the executive. However, in France and other European countries such as Belgium, Spain, Italy, Germany, they are deemed to be of a ‘penal’ nature and a judge makes the decision. This often consists of a  hearing, where a lawyer can defend the inmate and, appeal, and even access to the highest court (Padfield and al. 2010). It appears that there is no clear consensus in Europe as to the very nature of what French law calls ‘sentence management measures’.

Despite ruling in Ganci v. Italy (30 Oct. 2003, n° 41576/98) that Article 6 applied to a disciplinary sanction if it affected civil rights such as family contacts; and in Enea v. Italy (Gd Chamber,  17 Sept. 2009, n° 74912/01), that a security prison regime affecting visitation did affect ‘civil rights’; in Boulois, the Grand Chamber analyses the request for prison leave as not being of a ‘civil’ nature. According to Luxembourg’s legal system, prison leave is a ‘privilege’ which aims at ‘encouraging’ prisoners, this corresponds to the historical view that prison leave is used to control prisoner’s behaviour. In view of modern penological goals, prison leave now serves two purposes: firstly, to allow prisoners to prepare their future and inevitably – except for lifers – release (e.g. by trying to find a job) ; secondly, to keep in contact with their families. Family rights are particularly important as they play a key role in deterring crime and are protected under Article 8 (Maruna, 2001; Farrall, 2002).

Prison leave should not be seen as a ‘privilege’. As stated above, in most modern nations, it is no longer seen as being a purely behavioural tool. It is true that most legal systems contain provisions which state that inmates ‘may’ or ‘can’ be granted prison leave. The ECtHR has itself ruled several times that by using the word ‘can’ does not mean that the authority or judge has full discretionary power ( Lambourdière v. France, 2 Aug. 2000, n° 37387/97 and Camps n. France, 23 Nov. 1999, n° 42401/98). It has been argued numerous times (e.g. in Herzog-Evans, 2012), that such legal provisions should be interpreted reasonably. Indeed when the law states that an offender ‘can’ be released or granted prison leave, it does not imply that he has an absolute right to either. Conversely, it does not mean that once all legal conditions and requirements are met, the court or governing authority can still deny the offender’s application simply ‘because it can’. One should not confuse discretion with whim. According to a fairer interpretation, when a legal system uses the verb ‘can’, it means that once all legal requirements are met – and this should include the protection of the public – then the authority or court should grant release or prison leave. In other words, even when ‘can’ is used, there is indeed a right to prison leave once its conditions are met.

According to the Grand Chamber, however, there is no such thing as a European principle of ‘reintegration’. The court only refers to the conventions and protocols, without mentioning recommendations. Recommendations may be deemed as being mere ‘soft law’; nonetheless, they do represent a consensus between European countries. Precisely, and to quote only a few, the European Prison Rules (2006, preamble), the European Probation Rules (2010, section 2), and Recommendation (2003)22 (preamble) all refer to reintegration as being a fundamental principle. In other words there is indeed a consensus amongst European member states relating to the importance of reintegration.

Finally, one must look at the bigger picture: the right to a fair trial as laid out in Art. 6, is not only a humanitarian procedural luxury that Western countries can afford.  Fair trial is first and foremost the mark of a democracy. In most modern democracies, the right to a fair trial conquers more and more legal territories. In France, for instance, it now applies to disciplinary sanctions, solitary confinement decision-making, release, recall, and other sanctions. Besides, from the criminological viewpoint, Art.6 is an essential component of the legitimacy of justice. As empirical studies have shown (Tyler, 1990; Tyler and Huo, 2002) it fosters compliance (Liebling, 2007) – probably substantive compliance as opposed to instrumental compliance (Robinson and McNeill, 2008) – in other words it is essential to grant leave from prison in order to prevent reoffending.

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Nationalism and International Child Abduction: Russian Court Rejects Forum Shopping

There have been further developments in the case of Marianne Grin, previously reported here. On April 12, 2012 the Russian court in St. Petersburg , rejected an application by Grin to initiate proceedings which would allow her to have the children living with her in Russia.  The court ruled that the Italian court retains the proper jurisdiction to determine the issues that Grin was still in the process of litigating, when she abducted the four children from their custodial father in Italy last year.

The recent decision is already being hailed as evidence of the increasing sophistication and independence of the Russian judiciary. This goes against the stereotypical view that Russian courts will seize jurisdiction in international cases in order to favour Russian citizens in disputes.  See, for example, the comment by Dimitry Litvinski, a Russo-Franco practitioner in Paris: http://blog.pravo.ru/blog/3421.html  Litvinksi observes that the Russian judge showed proper regard to international legal norms, the competence of a foreign court to decide issues that were before it, and little tolerance for opportunistic forum shopping.

The decision may also may be motivated primarily with the interests of Russian citizens in mind.  In international child abduction cases, Russian courts are known to favour Russian parties.  Theoretically this would allow the few Russian parents who manage to abduct their children, to be successful in keeping them in Russia once they arrive, regardless of any foreign rulings.

International abduction cases are relatively rare, as they involve illegal conduct of the abducting parent.  Thus, for every foreign parent who is unable to secure the return of a child because of the nationalistic reputation of Russian courts, there are many more law-abiding Russians who are divorcing in foreign countries and who suffer as a consequence.

Given the absence of an effective means to secure the return, foreign courts will often prevent Russian parents from taking a child to visit their grandparents.  Thus, the Grin decision actually helps Russian parents living abroad, as they may cite it as evidence that a foreign decree regarding children will be honoured.  Unfortunately, the grounds on which Grin’s application was rejected were narrower than the court might have ruled.

In many child abduction cases the issue of “forum shopping” is becoming more prevalent in a world where travel and access to information is at our fingertips. The abducting parent may “forum shop” for the country most likely to favour/allow their illegal actions concerning their child e.g. failing to apply the Hague Convention. The evident forum shopping by Grin did not escape the court’s attention.  She was simultaneously participating in proceedings in Italy, where she had been filing the same charges against the father since 2009.  After receiving an adverse interim determination, Grin submitted her application to the Russian court in 2012. The court observed, perhaps with a smile, that Grin had not even registered the children at a Russian address until February 2012, just weeks before the judgment was issued.  The court noted that none of the children had previously lived in Russia.

In rejecting Grin’s application, the court rightly noted the danger of potentially inconsistent determinations between the same parties on the same issues in two different countries. So the earlier proceeding must go first.  But in reaching this conclusion, the court relied on a bilateral convention between the countries for the recognition and enforcement of judgments in civil cases.  While the existence of the convention no doubt reinforced the grounds for rejecting Grin’s claim, it would have been better had the judge simply adopted the view that earlier-filed proceedings on the same issues between the same parties should always be given precedence.

Consequently, Russian citizens going through a divorce in a foreign country may claim reliance on this ruling only where they can point to the existence of a similar bilateral agreement. Without such an agreement, a foreign court would – and should – remain skeptical as to whether a Russian court would enforce a foreign ruling.

As for the Grin case itself, the real outcome may spoil the good news in court.  The decision has still not led to the return of the children to Italy and neither the father or the remaining family have been able to communicate with them.  Due to other concerns expressed about her state of mind, it is not surprising to learn that Grin, having broken the laws of Italy, has now started ignoring the laws of Russia as well.

Scrambling for Safety Conference 2012: Data Gathering – What are the benefits?

Yesterday I attended the Scrambling for Safety conference at the LSE.
 I was really impressed by the wide range of speakers,
 from the leader of human rights group Liberty Shami Chakrabarti to the Conservative MP David Davis. Finally a real discussion featuring voices from a wide range 
of political and ideological affiliations, although noting the 
absence of any Labour politicians. It was a 
bit less exciting when I realised they all seemed to agree…

The members of the panel talked about the importance of privacy and the negative implications of the invasion of privacy. They also agreed, particularly Julian Huppert and David Davis MP, that politicians generally do 
not have a clue and often take advice from civil servants and security officials as fact. They often seem to rely on information without attempting to validate or research it themselves, probably due to the volume of information that relates to many issues. But what I really wanted to know was how much would it cost? Is it even viable or productive? 
Would it in any way benefit the general public in a way that would 
justify such an invasion of privacy? If not, why on earth was this 
happening? If stronger policies on surveillance are indeed necessary
 what are the alternatives?

Some light was shed on these questions in the second panel, who could not identify 
any real benefit of swamping the police with massive amounts of data
 and the chaos which would ensue as a result. Data gathering on such a
 large scale does not seem to make sense at all. If the government’s plans to combat serious crime and terrorism with these measures, this shows a clear lack of foresight. The panel emphasized that gathering data in this way would only catch very basic internet users, as there are so many 
ways to hide the data being picked up, such as using encrypted pages.
 Monitoring basic internet use, when more advanced users (you don’t 
need to be very advanced to use dropbox for example) know a way
 around it, would encourage a culture of “underground internet use”. This would only complicate things for the police/security 
services. It is also a waste of money and resources to invest in a 
policy that is fundamentally ineffective and extremely invasive of basic
 rights and freedoms. The costs are therefore certainly not outweighed by
 the benefits, which seem negligible if there even are any.

Whitfield Diffie, somewhat of a celebrity in the tech world, so I was told, addressed the issue of privacy of search terms such as e.g. divorce lawyers or cancer clinics which may be largely indicative of your private life. By accessing an individual’s search data the government would be enforcing a huge invasion of privacy, but it would also be largely counter productive and irrelevant to the police regarding surveillance matters.

A retired police officer in the 
audience stated that it appears the government are seeking to implement preemptive measures. Such data is often unusable and overwhelming to the police force
 because of the sheer volume. Analysing such data is complex and time 
consuming and thus provides little value in many investigations which
 need to be carried out swiftly. He gave the example of the recent
 shootings in Tolouse – France, where police had access to 500 intercepted email messages 
which provided a lead to the suspect. However the manpower to analyse and identify suspects in pressing operations will not always be
 available in relation to processing data. The police may not have enough people assigned to a particular case to be able to go through all the available data.

The conference was wrapped up by Nick Pickles from Big Brother Watch, who ended the day with a quote from David Cameron criticising Labour’s policies on surveillance. He pointed out that the coalition government must keep their word, something I fully agree with. He then added that he was standing for the Conservatives in the next election, making his short speech seem a little more like a self interested campaign. However the fact that the organisers were from a wide variety of civil society organisations allowed a broad discussion on an issue that affects everyone regardless of their political affiliation.

The main arguments made at the conference, appeared to be that the proposal is not only a gross invasion of fundamental rights and freedoms in both national and European law, but that it is also both costly and ineffective. The plan seems to be based on a misinformed and misguided policy relating to security, which doesn’t seem to provide any benefit to government, the police or national security. While this issue could have huge negative consequences it is still barely understood by either government or the public.

Shami Chakrabarti used the quote “they say the innocent have nothing to hide – but they do have something to protect”. At present there is little legislation relating to privacy law in the UK and Article 8 of the European Convention on Human Rights (ECHR) – the right to a private and family life, is often loosely applied. The Scrambling for Safety conference highlighted the fact that even current law on communications remains highly contentious. The proposed casual and constant invasion of privacy is not in the public interest, neither in terms of security nor cost. The proposal is unrealistic and inappropriate, what is really needed in the UK are stronger privacy laws/rights to protect our freedom and to fully integrate and apply Article 8 of the ECHR in national law.

CCDP: Privacy Law and Monitoring the Public

The Communications Capabilities Development Programme (CCDP) seeks to monitor the communications the public in the UK. The government is implementing it’s policy under he guise of combatting terrorism and crime, however human and civil rights groups are concerned this will lead to a severe invasion of privacy for UK citizens.

This could mean that internet service providers will be encouraged to to install so-called ‘black boxes’ at key points in their network. These boxes would use the technology of deep packet inspection which can track and investigate virtually every communication stream in the UK. They can also detect who is visiting the site, who is chatting with whom, on the phone or writing e-mails, Privacy International explains.

David Cameron claims that this proposal sets out to keep our country safe from serious organised crime and also from terrorist threats that we are still faced with in this country. But as Privacy International (PI) explained: “In a terrorism investigation, the police will already have access to all the data they could want. This is about other investigations.” With CCTV cameras on every corner, this seems like another unwelcome addition to something resembling a police state in the UK. Private conversations between individuals should remain private, using this technology to scrutinise the general public is both invasive and unnecessary. Emma Draper of PI goes on to say  that the information gathered in this new programme would be “available to local law enforcement for use in any investigation and would be available without any judicial oversight.”

The government states that these concessions are needed to prevent the anonymous communication between terrorists online. How will this apply to the average law abiding citizen and what repercussions will this have on our basic freedoms?

The state has already got the necessary tools to implement various surveillance measures in relation to suspected terrorist and criminals. The governments plan would lead to the gathering and storing of vast amounts of information relating to each individual regardless of suspicion or guilt. It remains unclear whether this would even be technically possible to monitor and scrutinize the public on such a large scale particularly when the such communications are encrypted.

The implementation of CCDP would also come at a great cost which would amount to billions of pounds and would be a new attack on the privacy of the population by the state. The majority of the public appear share these concerns and the media coverage has been largely negative.  Over 150.000 people have signed various petitions to stop the proposed legislation. However the government is intending to stick to their original plans. Despite the fact that before the previous general election both the Liberal Democrats and the Conservatives pledged that they would move away from the police state mentality. Nick Pickles from Big Brother Watch  has stated that they must be reminded to keep their word, to prevent that this large amount of information relating to innocent people isn’t collected.

In order to halt the bill, different NGOs such as Privacy International, the Open Rights Group, the Foundation for Information Policy Research and Big Brother Watch have organised a conference on the 19th of April at the London School of Economics in order to discuss the possible effects of the bill. These groups are seeking to spread awareness about the negative consequences the bill could have. On the conference website it states that  “the goal is to bring together a variety of stakeholders interested in surveillance policy for an open exchange of views.”

In a democracy such an invasion of privacy is unacceptable, the CCPD would place the UK at the same level as authoritarian states such as Kazakhstan or Iran. In countries such as Germany the approach to privacy is vastly different and privacy laws are much more stringent such actions by the state are much more restricted. This bill could have dire effects on both the human rights and freedoms of individuals who have no reason to be monitored by the state.

Diversity in the Judiciary – Are Times A’Changing?

The judiciary has long been criticised for being made up of white upper class men, however how accurate is this picture of the modern bar? It appears that in the area of diversity little has changed or at least  not enough.

In the recent Report published by the Lords Select Committee, the statistics show that in 2011 only 5.1% of judges were Black, Asian and Minority Ethnic (this is officially referred to as ‘BAME’) and only 22.3% were women. While the Committee stressed that the ‘diversity factors’ incorporate a number of other elements including disability, sexual orientation and social background, I have always found it odd to be asked to disclose highly personal information such as sexual orientation on an application form to the Inns of Court. That however is an entirely different matter.

The Committee stated that while judicial appointments should be based on merit it is vital and should continue, it appears that this has not resulted in a judicial system which is representative of society. It welcomes the idea of greater diversity and has agreed that the application of section 159 of the Equalities Act 2010 to judicial appointments would be beneficial in encouraging a change in the makeup of the legal system.

However why are these groups under represented? One of the most puzzling factors here is the lack of female appointments. There are such a large number of women studying law that the measly figure of 22.3% seems completely unrealistic. Not only because women obviously account for half the population, but also because there are so many top female law students and lawyers.

Dame Elizabeth Kathleen Lane: First female judge in the UK

When you walk into a lecture at City Law school, at least half of the lecture theatre will be filled with women. Where are these faces in the judiciary? How and where do they get lost on the way to the top appointments. Lady Justice Hallett highlighted this issue by indicating that her appointment was rather an anomaly than a symbol of modernisation. Maybe most of these law graduates choose to become solicitors rather than barristers/judges, where there is greater diversity.

The bar is by definition quite an exclusive and closed profession. The tuition for the BPTC now costs between 14,000 and 17,000 pounds, which many aspiring barristers embark on with no, or very little funding. Who can afford such a high price, especially at a time where the chances of securing a pupillage are so slim. These constraints prevent many law graduates from gaining access to the bar, unless of course they have an alternative income or support from their family. This however still does not explain the lack of female judges.

Constance Briscoe one of the first black judges and author of Ugly

Women and candidates from minority backgrounds should be encouraged to apply for these positions by creating more compatible working conditions. The Committee has recognised that there should be wider opportunities available for flexible working hours and career breaks, in order to encourage applications from women and others with caring responsibilities. (not that it should only be women caring for children – this may also attract a different sort of man who may be more adapted to home life)

The Committee has not actually set out any targets for the number of BAME and women judges it seeks to appoint, however it says this issue should be reviewed in five years if no significant progress has been made. I won’t hold my breath on the next set of statistics, but I hope that those making judicial appointments will be more open to embracing change.

Video Clip of Baroness Jay discussing judicial appointments