Notable cases thus far in 2012

In addition to the cases on freedom of information and on freedom of assembly which I have discussed in their own blog posts in recent days, the following are among the more noteworthy cases in constitutional law in 2012 to date.

1. Assange v Swedish Prosecution Authority [2012] UKSC 22

From the perspective of constitutional law this decision is interesting less because of the notoriety of the claimant (Mr Julian Assange) and his online achievements (with WikiLeaks), and more because of what the Supreme Court says about the interpretation of the Extradition Act 2003 and the use to be made of EU and international law in its interpretation. This is a matter we consider in the book at pp 61, 79-80 and 356-9. At issue in Assange was whether the European Arrest Warrant (EAW) issued by the Swedish prosecution authority had been issued by a “judicial authority” within the meaning of the Extradition Act 2003. The question divided the Supreme Court 5-to-2, with the majority ruling that it had been and the dissentients ruling that it had not been (thus, Mr Assange’s extradition to Sweden was deemed to be lawful in the eyes of the majority). Parliamentary material arising from the Extradition Act’s passage through Parliament seemed to make clear that “judicial authority” had been intended to mean court, magistrate, or judge — and not prosecutor. Even without relying on any parliamentary materials, it might be thought that “judicial authority” in a UK statute would ordinarily mean a court, magistrate or judge. But the majority ruled that the UK statute, which had been enacted in order to give effect to the EU’s Framework Decision on the EAW, should if possible be interpreted consistently with the UK’s international obligations, including its obligations as regards the EAW (cf R v Lyons, cited at p 61 of the book). In the Framework Decision on the EAW, the majority ruled, the phrase “judicial authority” included not only courts and magistrates, but extended also to prosecutors. The same phrase in the UK statute must therefore have the same meaning. Lord Mance and Lady Hale dissented; for these Justices the meaning of “judicial authority” in the statute clearly did not extend to prosecutors and, in any case, the meaning of that phrase in the Framework Decision was obscure. The case is a fascinating example of the extent to which international and EU law may be used by our courts as aids to the interpretation of a UK statute.

2. R (Guardian News and Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420

An important case on freedom of speech, (a) illustrating the close relationship between common law reasoning and Article 10 ECHR in free speech issues and (b) focusing in particular on the right of access to information as an element of free speech — an element of free speech which the court rightly sees also as a component of the rule of law. In the case the Guardian newspaper was successful in arguing that it should have access to court documents relating to the extradition of two British citizens to the US in relation to bribery/corruption allegations involving the activities in Nigeria of a subsidiary of the US company, Halliburton. The documents were needed, claimed the Guardian, to facilitate its ongoing investigations into matters of bribery and corruption.

3. R (British Sky Broadcasting and others) v Chelmsford Crown Court [2012] EWHC 1295 (Admin)

Another free speech case. This time various media organisations successfully resisted a court order that had required them to disclose to the police video recordings they had made of the Dale Farm evictions. The police had wanted the recordings to enable them to identify a number of the people who had been involved in the evictions. Under the Police and Criminal Evidence Act 1984 the police may seek access to such material where they can show that it would be of “substantial value” to an investigation (PACE, Sched 1). Unfocused or scattergun requests by the police may not lawfully result in a court order that the material be produced. Here, the Administrative Court ruled that the “substantial value” test had not been satisfied and that the order of the lower court that the recordings be handed to the police had been a disproportionate interference with the media organisations’ right to freedom of expression under Article 10 ECHR.

4. Flood v Times Newspapers [2012] UKSC 11

More free speech, this time the Supreme Court (overruling the Court of Appeal) applying in the newspaper’s favour the Reynolds “responsible journalism” defence in an action for defamation in connection with the reporting of allegations of police corruption (on Reynolds, see pp 793-4 of the book). Flood breaks no new ground — it is an application of Reynolds and Jameel — but it is another interesting example of the delicate balancing exercise that courts must undertake in litigation concerned with fundamental rights.

5. R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin)

A final free speech case. In this one a Councillor was successful in arguing that his censure for breaching a Community Council Code of Conduct was a disproportionate interference with his freedom of expression. The Code required Councillors to show “respect and consideration” for others. Cllr Calver wrote a blog on which he posted comments critical of certain of his colleagues. The court ruled that while much of what was posted was unattractive, the political nature of the remarks meant that the claimant’s free speech rights needed to be accorded considerable weight and that his censure in respect of them was disproportionate.

6. R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin)

A town councillor (supported by the National Secular Society) objected to the saying of prayers as a formal item of Council business. The claimant argued, among other matters, that a local authority had no legal power to itemise the saying of prayers on the agenda of its meetings. On this point the claimant was successful, the court ruling that the terms of section 111 of the Local Government Act 1972 could not render the matter lawful (on this provision, see p 273 of the book). The decision encouraged the Secretary of State (Mr Eric Pickles MP) to bring into force earlier than he had planned section 1 of the new Localism Act 2011 (on this provision see also p 273 of the book).

7. R (Williams) v Surrey County Council [2012] EWHC 867 (QB)

Section 149 of the Equality Act 2010 provides for a “public sector equality duty” (PSED), requiring public authorities to pay “due regard” to the need to eliminate discrimination and to advance equality of opportunity. The PSED is arising with increasing frequency as a matter in litigation. An example is Williams, where it was successfully argued for the claimant that Surrey CC had failed to discharge its PSED in its decision to make certain changes to its library service. As local authorities are faced with growing pressures on their budgets, it may be that we will see a glut of case law featuring arguments that the PSED has been breached in these circumstances.

 

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Notable cases thus far in 2012

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