Convention Rights and the UK Law - Essay Example

? CONVENTION RIGHTS INCORPORATED INTO THE UK LAW Lord Steyn set an approach in the way in which the court performs a balancing exercise. Judges have the task of human rights adjudication handed to them by parliament. They must adjudicate and give reasons. Where the issue concerns cultural and social values, rather than a fair trial, judges can bring to the task no specialized qualifications: only open mind, a respect for both free speech and privacy, and a willingness to listen to both sides. At present, as the law progresses, the favoured approach is for the judge to enquire carefully into the facts, and a decision made based on evaluation of the facts (Cohen & Raphael 2001). Balancing of an individual’s right to privacy with the media’s right to freedom of expression Domestic courts have adopted a two-stage test in attempting to balance the media’s right to freedom of expression and an individual’s right to privacy. In such cases, where there is a publication of private information, the court decides on two things. Firstly, is the information published private? Private in the sense that Article 8 protects it. If the answer is no, then the case concludes. If yes, the second query arises: must the interest of the holder of the private information or data yield to the right of freedom of expression granted on the publisher by Article 10? (DeCew 1997). Stage 1: Does (A) have a reasonable expectation of privacy in the relevant information? Key Domestic Case Law: Campbell v MGN Ltd [2004] 2 AC 457, HL The fundamental question in cases where there is an allegation of breach of information is whether the information disclosed is private and not public. There must be the presence of some interest of a personal nature that the claimant wishes to protect. In some cases, the answer to the question whether the information is public or private is obvious. Where it is not, a broad test is whether disclosure of information about an individual (A) gives substantial offence to (A), when assuming (A) was placed in the same circumstances and was a person of ordinary sensibilities (DeCew 1997). Key Strasbourg Case law: Von Hannover v Germany (2005) 40 EHRR 1, ECtHR The issue was whether German courts infringed on Princess Caroline of Monaco’s right to respect of her private life under Article 8. This is because adequate protection was not afforded to her from publication of photographs taken without her consent or knowledge by paparazzi. Freedom of expression extends to publication of photographs, but the reputation and rights of others take importance as the photographs concerned images containing highly personal and or intimate information about an individual. In balancing articles 8 and 10, the contributions that the articles and photographs made to a public debate were the decisive factors. The public did not have a legitimate interest to know her private life. Everyone has a legitimate expectation for protection of his or her life. Therefore, article 8 had been violated (DeCew 1997).. Stage 2: Parallel Analysis In this analysis, neither article 8 or 10 has precedence over the other. If the values in both the articles are in conflict, intense focus on comparative importance of the rights in question is necessary. The justification for restricting or interfering with each right must be considered. In conclusion, there is the application of the proportionality test to each right (DeCew 1997).. Impact of the Contempt of Court Act 1981 on the freedom of the press Contempt of court is the unlawful interference of administration of justice. Contempt of court ensures that the court has the freedom to decide on matters before it, without influence from the press. Contempt of court is directed towards those in the media seeking to obstruct, interfere or undermine the administration of justice and the court. Breach of contempt of court can lead to a fine or imprisonment (Doherty 2003). The law of contempt places restrictions on the freedom of expression which is a crucial freedom to the survival of the media and press. It affects a balance of interest in favour of freedom of speech away from the administration of justice. Key Cases Attorney General v. Times Newspapers [1974] AC 273 The Sunday Times criticized the proposal of a court settlement related to the thalidomide issue. The Attorney General took action against the paper for interference with court proceedings. In the interest of the public, the House of Lords maintained that it was proper to restrain the paper (Doherty 2003). The Sunday times case (Sunday Times v. UK (1979-80) 2 EHRR 245) The attorney general obtained an injunction restraining publishing of an article on thalidomide issue by the Sunday Times on grounds that it constituted to a contempt of court. The Sunday Times filed a case with the European Commission of Human Rights insisting the injunction violated their right of freedom of expression outlined by Article 10. The Commission’s verdict was that there was a breach of Article 10 and the case referred back to the Court (Doherty 2003). Attorney General v. English [1983] 1 AC 116 In this case, the House of Lords maintained that an article published by the Daily mail in relation to Down syndrome was not contempt of court since it discussed matters of public interest in good faith (ed. Schoeman 1984). The Law on Contempt of Court before and after the Passing of the Contempt of Court Act 1981 Before the passing of the Contempt of Court Act in 1981, contempt is established at common law. The common law is still critical in determining what act constitutes contempt. Case laws establish the powers of courts in dealing with contempt (eds. Coleman & Shapiro 2002). In 1925, Criminal Justice Act, section 41 created contempt to photograph, attempt to make or make any sketch or portrait of a witness or justice party to proceedings before a court, either inside the courtroom or its precincts (eds. Coleman & Shapiro 2002). The Administration of Justice Act of 1960 section 12 created contempt focused on reports of court proceedings sitting in private. The Criminal Procedure Act of 1965 section 3 permits punishment of persons who violate witness summons or witness order as if the contempt is committed in the court. The Magistrates’ Court Act of 1980 section 97 grants a magistrate powers to penalize or commit to custody any person who refuses to be sworn or disclose a document or produce evidence. After the Contempt of Court Act of 1981, Criminal Procedure and Investigations Act of 1996 section 18, creates contempt where a person intentionally discloses or uses information or an object contained in it if the disclosure of the information contravenes section 17 (eds. Coleman & Shapiro 2002). Main Provisions of Contempt of Court Act Section 1 defines the strict liability criminal offence. It states that publishing of material related to an active court proceeding is an offence of contempt of court. Section 2 states that strict liability only applies when there is a substantial risk of serious prejudice. The Contempt of Court Act also outlines defences for contempt of court. These defences include section 3 on innocent publication, section 4 on fair and accurate reports on proceedings and section 5 on the discussion of public affairs (Cohen & Raphael 2001). Conclusion The proper approach to dealing with a clash of rights outlined in conventions and laws is to conduct a balancing test as shown in Lord Steyn in Re: S. The balancing test is not limited to privacy claims. It also extends to convention rights. Balancing of all considerations is necessary for a fair judgement (Cohen & Raphael 2001). References Cohen, A. and Raphael, H., 2001. Speech, media and ethics: the limits of free expression, Basingstoke: Palgrave. Coleman, J and Shapiro, S., (eds.) 2002. The Oxford handbook of jurisprudence & philosophy of law, Oxford: Oxford University Press. DeCew, J., 1997. In pursuit of privacy, New York: Cornell University Press. Doherty, D., 2003. ‘Contempt of court and court reporting’, Lawdit reading room, 16 October, viewed 12 April 2012, http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Contempt of Court.htm Schoeman, F. (ed.) 1984. Philosophical dimensions of privacy: An anthology, Cambridge: Cambridge University Press. Read More