Tag Archives: Legal procedure

The celebrity threesome and a judicial foursome

Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.

Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?

Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”

Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.

Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.” 

 This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:

There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)

The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference? Continue reading

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Deprivation of Liberty Safeguards descend into costly chaos

Is Britain’s Deprivation of Liberty Safeguards regime, intended to protect people receiving state care in care homes, hospitals and supported living schemes, turning into an expensive legalistic shambles as a result of a controversial human rights case in the UK Supreme Court? The case, Cheshire West ([2014] UKSC 19 ), was intended to deal with a very real problem: that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights (right to liberty) – even though they are put in place in the interests of the disabled person and even if they are living in a family home. But a couple of bizarre recent cases in the lower courts suggest there is a real problem.

Critics of the Supreme Court position on Deprivation of Liberty Safeguards (DoLS) talk of “gilded cages” and argue that human rights should not intervene too rigidly in the discretion of social workers acting in the best interests of clients lacking capacity. Nevertheless, to have no protections in place or to deny them to people without capacity would clearly be wrong and specifically a breach of Article 5 and Article 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination”.) The Supreme Court came up with a new definition of deprivation of liberty:

“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.”

Compliance or even agreement by the person involved did not prevent the arrangements being a deprivation of liberty. It followsed from this that social services staff had to put care plans under more intense review and particularly that social services departments could not authorise their own social workers’ schemes when they involve domestic supported living arrangments or complex cases – which require the sanction of the Court of Protection. (Note on the judgment here) Once a court has found deprivation of liberty, a regime of expensive legal safeguards must be put in place with oversight by the courts. This is the real issue of controversy as far as local authorities are concerned.
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