Right to freedom of expression - Public Law, Study notes of Law

Download Right to freedom of expression - Public Law and more Study notes Law in PDF only on Docsity! Article 10: Right to freedom of expression 1. 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 a public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for the maintaining of the authority and impartiality of the judiciary. Article 10 protects your right to freedom of expression. This includes the right to hold and express opinions yourself as well as to receive and impart information and ideas to others. Before the Human Rights Act came into force, the right to freedom of expression was a negative one: you were free to express yourself, unless the law otherwise prevented you from doing so. With the incorporation of the European Convention on Human Rights into English and Welsh domestic law, the right to freedom of expression is now expressly guaranteed. In Handyside v UK (1976) the ECHR stated that freedom of expression constituted one of the essential foundations of a democratic society and one of the basic conditions for its progress and development of every person. It also made clear that Article 10 applied not only to information or ideas that are favourable and inoffensive but also to those that offend, shock or disturb the State or a sector of the population. However, where an interference with expression has concerned anti democratic ideas and extreme right wing views contrary to the text and spirit of the Convention, the ECHR has varied between excluding the expression from the scope of Article 10 altogether or concluding that the interference is justified by Article 10(2). The right to freedom of expression in Article 10 is not an absolute right. It is a qualified right which means that formalities, conditions, restrictions or penalties may be imposed on the exercise of this right if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society. This latter condition requires the means employed to be necessary and proportionate to the aim pursued. The legitimate purposes for which freedom of expression can be limited are set out in Article 10(2) set out above (see also section headed ‘A qualified right’ under Article 8). All restrictions of freedom of expression must be necessary in a democratic society in the interests of national security, territorial integrity, or public safety or for the prevention of disorder or crime or for the protection of health or morals and must be proportionate s12 HRA 1998 • Defamation: publication whether oral or written, of a falsehood which damage the reputation of the person concerned; which lowers the victim’s reputation in the eyes of right thinking members of society generally. (defence under defamation act 1996). • Contempt of court: developed as means for courts to punish or prevent conduct which tended to be abusive or prejudicial to administration of justice in individual cases and in a general way: • contempt in the face of the court: it is a contempt if you refuse answer questions or give evidence in court – Balogh: solicitor’s clerk was jailed for attempting to pump laughing gas into the air conditioning of a court. • scandalising the court: protects judges from criticism that might undermine public confidence in judiciary. Attack on integrity or impartially of judges. (prosecutions are rare). • Conduct liable to prejudice judicial proceedings – both civil and criminal: Contempt of court act 1981 was to achieve a balance between judicial system from improper attack and allow freedom of speech. Imposes strict liability for publications which create a substantial risk that judicial proceedings will be seriously impede or prejudiced which must be a substantial risk (AG v Mirror group newspaper) • Defences to contempt: • s3 innocent publication • s4 fair and accurate reporting • s5 a publication made as part of a discussion in good faith of public affairs where the risk of prejudice to particular legal proceedings is merely incidental to the discussion (AG v English) • s10: cannot order to disclose source of information contained in publication unless court is satisfied it is in the interests of justice, prevention of disorder or crime or in interests of national security • Obscenity: an article shall be deemed to be obscene if its effect or the effect of any one of its items is, if taken as a whole, tend to deprave and corrupt persons who are likely, having regarded to all relevant circumstances, to read, see or hear the matter contained or embodied in it • An article is published if a person distributes, circulates, sells, lets on hire, gives or lends it or who offers it for sale or for letting on hire; if article has to be looked at or a record then shows, plays or projects it; If matter is stored electronically, transmits that data. • Breach of confidence: information made know to A to B on the basis that B is receiving information in confidence. Courts may be willing to grant A an injunction to prevent publication of information be B. an action for breach of confidence can be brought to restrain publication of government secrets. Defences include staleness, already in public domain. (ex parte Mohamed) JUDICIAL REVIEW Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. It is a challenge to the way in which a decision has been made. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the law has been correctly applied and the right procedures have been followed. The court will not substitute what it thinks is the 'correct' decision. This may mean that the public body will be decided not to make any order. However, in the majority of successful judicial review cases a remedy is given. Claims for judicial review must be brought promptly and in any event within three months of the event complained of. (HRA 1998 s7(5) 1 year) These time limits mean applications should be made as soon as possible once it is clear that the case is suitable for judicial review. The following are not usually accepted as excuses for late applications: • ignorance of the law, even if you have been badly advised; • unjustified delay in seeking proper advice; or, • delay by the public body if the claimant adds to this by his or her own delay. All claims for judicial review are heard at the Administrative Court in central London. This can make it extremely inconvenient for claimants outside London. Claims for judicial review are made in two stages: 1) The permission stage. This allows the court to filter cases by deciding which should be allowed to go to a full hearing. The permission stage is decided on the basis of a written claim and will involve a fairly brief look at the case to decide whether: • there is an arguable case; and, • the case has been brought promptly or if any delay can be justified. The claimant must prepare all the papers at this stage. A court fee of £50 is payable. The judge will read the documents and will decide whether to grant permission. The decision will be notified by post and very short reasons may be noted if permission has been refused. 2) Full hearing. The claimant must pay a further fee of £180 within 7 days of the decision to grant permission. The judge may also make an order concerning the way in which the case should proceed, called case management directions. When all parties are ready, and when the court has time available, the case is listed for a full hearing at which argument by both sides is heard by the court. How long does it take? Claimants currently wait between 6 months and 1 year for a case to go to a full hearing, though urgent cases can be heard within 24 hours if necessary. However, the first ‘permission’ stage of the proceedings may only take a few weeks and many cases are “settled” following the decision of the court to grant permission. Very often making a claim will encourage a previously unresponsive defendant to review the matter, as they can see that you mean business. A public body's concentration on the issues involved will be increased even more if permission is granted. Constitutional position The English constitutional theory, as expounded by A.V. Dicey, does not recognise a separate system of administrative courts that would review the decisions of public bodies (as in France, Germany and many other European countries). Instead, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts. At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (Acts of Parliament). This limits judicial review in English law to the decisions of public bodies and secondary (delegated) legislation, against which ordinary common law remedies as well as special "prerogative orders" are available in certain circumstances. The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of law Anisminic v Foreign Compensation Commission and of fact and the courts have also declared the decisions taken under the Royal Prerogative to be amenable to judicial review Council of Civil Service Unions v Minister for the Civil Service. Therefore it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights. Ouster clauses Sometimes the legislator may want to exclude the powers of the court to review administrative decision, making them 'final', 'binding' and not appealable. R (Cowl) v Pymouth City Council. However, the courts have consistently held that none but the clearest words can exclude judicial review R v Medical Appeal Tribunal ex parte Gilmore. When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion. The Government withdrew the proposal. The courts however do uphold time limits on applications for judicial review R v Secretary of State for the Environment ex parte Ostler. (NB under the HRA: dichiarzione di concompatibilità riguarda incompatibilità dell’atto in toto o una sezione, se invece l’atto è ok ma è il potere discrezioale dell’autorità secondaria allora la decisione può essere quashed). FREEDOM OF ASSEMBLY AND ASSOCIATIN AND PUBLIC ORDER Art. 11: everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and join trade unions for the protection of his interest. No restrictions shall be places on the exercise of these rights other than such as are prescribed by law and are necessary n democratic society in the interest of national security, or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others. Freedom of association: as general principle persons are free to associate with each other for political purposes, but some legal limitations. Public order act 1936 s1: prohibits the wearing of political uniforms in any public place or at a public meeting except if worn for ceremonial, anniversary or special occasions. S2: creates an offence of controlling, managing, organising or training an association of persons for the purpose of usurping the functions of the police or armed force or for the use or display of physical force in promoting any political object. Terrorism act 2000 s 13: offence for a persons in a public place to wear any item of dress, carry or display any article in such a way or circumstances as to arose reasonable apprehension that he is a member of supporter of a proscribed organisation. Freedom of assembly: right to meet in public. Statutory restriction are mainly in the POA 1986 and the CJAPOA 1994. Law must be viewed in light of Art. 100 and 11 ECHR. POA 1986 s 16 an assembly of 2 or more persons in a public place which is wholly or partly open to the air = public assembly POA 1986 s 14 as amended by CJAPOA 1994 ss 70, 71: police officers may impose conditions if he or she reasonable believes that it • may result in serious public disorder, damage, disruption to the life of the community; • the purpose of the persons is to intimidate others(police v reid: not just unconfortable!) only 3 conditions can be imposed on assemblies: • place where it may be held • maximum duration • maximum number of participants s14 1994 act: added the power of police officers to ban a trespassory assembly if: • it was held without the occupiers permission or exceeded it or exceeded public’s rights of access • it may result in either serious disruption to the life of the community or significant damage to land (jones v DPP) ss 61, 62: a police officer can order the removal of 2 or more trespassers from the and where he reasonably believes that: • they are present with the common purpose of residing there • reasonable steps have been taken by the occupier to ask them to leave or have caused damage or if they have more then 6 vehicles on the land. S 68: aggravated trespass: where person present on land without permission and commits acts intended to intimidate others on the land so as to deter them form engaging or continuing in any lawful activity. A police officer can order the dispersal of groups whose behaviour has or is likely to result in members of the public being harassed (anti-social behaviour act 2003 s 30). Highways: there is a right to pass and repass along them, but it is a criminal offence to obstruct a highway (highway act 1980 s 137) the obstruction must be: physical, wilful and without lawful excuse (Jones v DPP). The police officer can arrest without a warrant. Processions: s 11. Must give 6 days written notice to the police for a proposal to hold a public procession intended to: demonstrate support, publicise a cause, commemorate an event. S16: public precession: a procession in any place which the public or any section of public have access on payment or otherwise, as of right or by virtue of express or implied permission. POA s 12: police officers may impose conditions as regards t time, place or rout if he reasonably believes that it: see HR Art 11(2). • may result in serious public disorder, damage, disruption to the life of the community • the purpose is to intimidate others POA s 13: a police officer can prohibit public processions being held if it will result in serious public disorder (kent v metropolitan police) Offences that can occur: • breach of the peace: whenever harm is actually done or likely to be done to a person or in his present to his property (Howell). Breach of peace must be imminent, there is power to arrest people who are going to be violent and break property rather than the one actin lawfully (ex p ward); in Redman Bate V DPP free speech was to be respected provided not provoked violence, the crowd was unlawful not the 3 preachers.