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The Investigatory Powers Act and International Law: Part I

IraRyk-Lakhman26 December 2016

Author: Asaf Lubin (JSD candidate, Yale Law School and Robert L. Bernstein International Human Rights Fellow with Privacy International)

Christmas came early for the UK Government Communications Headquarters (GCHQ). Wrapped in a red ribbon and sparkling with parcel lights, Parliament handed the signal intelligence agency a gift, the Investigatory Powers Act (IPA), providing it with a statutory authorization to engage in bulk interception and retention of electronic communications’ metadata and content, both within and outside the United Kingdom. Like last-minute shoppers running up and down the cramped stores of Oxford Street, so were the Lords in a hurry to complete the IPA’s legislative process before the new year, when the sun was to set on the previous legislation, the Regulation of Investigatory Powers Act (RIPA, 2000).

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Since the IPA received royal assent and became an official Act on November 29th 2016, the legal blogosphere and general media have been buzzing over this measure and its implications (see for example: here, here, here, here, and here). Particular attention has been given to the new law’s data retention provisions, which were struck down by the European Court of Justice earlier this week, forcing an impending legal headache for legislators. Nonetheless, a number of the Act’s most troubling features have not been sufficiently reviewed from the perspective of their compatibility with the United Kingdom’s broader international obligations. As we say Rest In Peace to RIPA and usher in a new age of legalized governmental mass surveillance, the following two blog posts will take a step back and examine the new Act’s compatibility with international human rights law (IHRL) as well as its impact on the ongoing evolution of the international law of espionage.

            Within the limits of this blog post I will focus on the following four elements of the Act: (a) Thematic Warrants and Lack of Reasonable Suspicion; (b) Foreign Mass Surveillance and Hacking Powers; (c) Standards on Encryption and Direct Access; and (d) Reporting, Notification Requirements, and Gag Orders.

What’s in Santa’s Stocking? GCHQ’s new surveillance powers and their compatibility with IHRL

a. Thematic Warrants and Lack of Reasonable Suspicion

While disguised as targeted surveillance, the IPA seeks to introduce into law “thematic warrants”. These warrants delegate to the police or intelligence agencies the choice as to whose privacy will be interfered with. This, in turn, increases the risk of arbitrary decision-making and undermines the implementation of effective judicial authorization. In accordance with the Act, the Secretary of State may issue a “targeted interception warrant” (for the acquisition of content of communications) or a “targeted equipment interference warrant” (for extracting information from devices either directly or remotely, via hacking tools). These warrants are subject to the approval of a Judicial Commissioner, barring urgent matters. The warrants allow communication within the United Kingdom to be intercepted and, equipment within the United Kingdom to be interfered with; insofar as these communications or equipment  relates to: (1) people or equipment “who share a common purpose or who carry on, or may carry on a particular activity”; (2) “more than one person or organization, or more than one set of premises, where the conduct authorized or required by the warrant is for the purposes of the same investigation or operation”; (3) “equipment that is being, or may be used, for the purposes of a particular activity or activities of a particular description”; (4) the testing, maintenance or development of capabilities relating to interception or equipment interference.

     As clarified in the explanatory notes, these subject matter expansions intended to encompass, “thematic warrants”. Under a thematic warrant, the Secretary of State and a Judicial Commissioner do not approve each individual target of surveillance, but rather the security agencies can choose their targets without additional sign off. To illustrate, a thematic warrant might authorize the hacking of all mobile phones of members of the Muslim faith in Birmingham, or the interception of the communications of anyone suspected of having travelled to Turkey in the last three months.

         As the Intelligence Services Commissioner points out “the critical thing … is that the submission and the warrant must be set out in a way which allows the Secretary of State to make the decision on necessity and proportionality”. However, permission for interception of communications and hacking of networks without prior reasonable suspicion is by its very nature disproportionate. In the case of Gillan and Quinton v United Kingdom, the European Court of Human Rights (ECtHR) expressed particular concern over an intrusive power that did not require any “reasonable suspicion” (in that case the power of random stop and search individuals under s44 of the Terrorism Act 2000). Such broad discretion gave rise to a “clear risk of arbitrariness”. In S and Marper v United Kingdom, the U.K. government submitted that the retention of DNA samples from people who had not been charged or convicted of a criminal offence was of “inestimable value” and produced “enormous” benefits in the fight against crime and terrorism. The Grand Chamber of the ECtHR nonetheless held that the retention was a “disproportionate interference” with those individuals’ private lives. Central to the reasoning was the absence of any assessment of suspicion by the authorities that was sufficient to justify the retention of each individual’s DNA data. The same reasoning applies in relation to thematic warrants under the IPA. More recently in Zakharov v. Russia the ECtHR reiterated the principle that the authorization of interception of communications “must clearly identify a specific person to be placed under surveillance or a single set of premises.

b. Foreign Mass Surveillance and Hacking Powers

Part 6 of the Act authorises  the GCHQ to engage in bulk interception, acquisition, and equipment interference of “overseas-related” communications and communications systems. These comprise communications “sent or received by individuals who are outside the British Islands”. In order for the Secretary of State to issue such a bulk warrant, the warrant must be considered necessary for : (1) the national security; (2) the prevention or detection of serious crime; (3) the economic well-being of the UK. At the next stage, the examination of any such acquired data may be authorized only for one or more of the operational purposes specified in the warrant. These may include, inter alia: counter terrorism, counter proliferation, countering hostile actors, safeguarding prosperity, cyber defence operations, security of agencies’ and allies’ operational capabilities, security assurances, and the tackling of serious crime.

          The issuing process is identical for each type of bulk warrants. First, the head of an intelligence service, or any official designated by her, must submit a request to the Secretary of State. The Secretary may then issue a bulk warrant, subject to a necessity and proportionality analysis. The decision to issue a warrant is then further scrutinized by a Judicial Commissioner, before it is granted. This is known, in the UK jargon as the “double lock mechanism” (a dual executive-judicial pre-authorization process for its foreign bulk warrants).

        In essence, the law explicitly authorizes the GCHQ to engage in bulk hacking of networks and devices and to intercept communications worldwide. While the UK has taken pride in solidifying the “double lock mechanism”, in actuality the law limits the scope of review by the Judicial Commissioners to mere procedural aspects. In other words, judges will not be given actual powers to assess the merits of any proposed surveillances measures. Moreover, in the case of bulk warrants, the authorization requests will be formulated in such broad and vague terms, that the attempt to form any judicial assessments on the merits of the application will prove essentially impossible.

       Legal institutions and judicial fora may hardly be said to have fully resolved the question of what standards should apply to foreign governmental surveillance. For instance, this issue has not been sufficiently addressed by the ECtHR; although a ground-breaking pending case launched by Privacy International alongside nine other human rights NGOs invites the Court to clarify this matter specifically. The Human Rights Committee in its Concluding Observations to South Africa did note that State Parties should refrain from “engaging in mass surveillance of private communications without prior judicial authorization”. Similarly, certain Special Rapporteurs, such as Ben Emmerson, have already concluded that “the very existence of mass surveillance programmes constitutes a potentially disproportionate interference with the right to privacy” and that “shortly put, it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.

c. Standards on Encryption and Direct Access

The IPA allows the Secretary of State to issue a “technical capability notice” in order to compel an operator to provide government officials with direct access to its network apparatus. Moreover, under such notices, the Secretary of State may further compel an operator to decrypt intercepted communications. The issuance of such a notice is subject to a necessity and proportionality test, which is [to be]/will be conducted by a Judicial Commissioner. Amongst other factors, the Secretary of State must further take into account the technical feasibility and likely costs of the request. Should the Judicial Commissioner refuse to approve the notice, the Secretary of State may appeal to the IP Commissioner so as to approve the notice nonetheless.

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        It is on this point that the ECtHR, in Zakharov v. Russia, affirmed that “a system…which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider…is particularly prone to abuse.” It is in this context that providing government officials with direct and complete access to communications networks run by private corporate providers, is unlikely to comply with the standards of necessity and proportionality. Furthermore, as noted by the U.N. Special Rapporteur David Kaye, “national laws should recognize that individuals are free to protect the privacy of their digital communications by using encryption technology and tools that allow anonymity online… States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows.”

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    The IPA, as currently drafted, does not give sufficient weight to factors against decryption. Such factors include: the importance of maintaining the integrity of networks, potential cybersecurity threats, the reputational costs for companies, and chilling effects on expression and creativity of users. By ignoring these issues, the law lacks balance and could open the door to a UK version of Apple v. FBI (which concerned the question of whether US Courts could compel manufacturers to assist in unlocking cell phones whose data are cryptographically protected).

d. Reporting and Notification Requirements

In conformity with the IPA, an individual subjected to surveillance would be informed by the IP Commissioner only when such surveillance involved a “serious error” or concerned the “public interest”. Further, the Act establishes a general reporting requirement, whereby at the end of each calendar year the IP Commissioner must report to the Prime Minister (PM) of/on the way the functions of the Judicial Commissioner have been carried out. While by default this report is to become part of public record, the PM may order otherwise. Thus, should the PM consider the publication of parts of the report as: contrary to public interest or prejudicial to – national security, the economic well-being of the State, the continued discharge of functions of public authority, or the prevention or detection of serious crime, she can decide, in consultation with the IP Commissioner, to exclude from publication those parts of the report. This is not the only way the Act leaves certain information out of the public eye. Notably, any warrants issued to a telecom company or service provider, demanding direct access to its networks or decrypt its users’ data, will be followed/accompanied by a gagging order, “forbidding the firm from discussing it” essentially squashing public debate and scrutiny.

   Independent oversight mechanisms ensuring transparency and accountability of State surveillance communications have been recognised as necessary to guarantee privacy and data protection rights. The lack of a strict reporting requirement in the IPA, due, in part, to the broad range of [security/self-judging] exceptions the Act prescribed, brings into question the degree to which transparency and accountability can effectively be achieved. Additionally, the Act only provides for notification to individuals in cases of identifiable “error”. However, as the ECtHR has affirmed, States have an obligation to provide notification to persons concerned by/with the used measure. To be sure, according to this jurisprudence, notification is due not just in cases of abuse, but rather immediately following the termination of the measures assuming “it can be made without jeopardizing the purpose of the surveillance.” Furthermore, the UN High Commissioner for Human Rights further acknowledged that notification is fundamental in ensuring individuals access to effective remedy. Under the current IPA it is unlikely that individuals will have the opportunity to seek redress where their privacy rights have been violated.

Online Censorship and (the rhetoric of protecting) Children

IraRyk-Lakhman11 November 2016

A review of the recent Israeli “Porno Bill”

By Amir Cooper Esq.*

How to pass State-mandated censorship in two simple steps?

First, award any such legislation proposal a catchy name. Second, state that the governmental restrictions are grounded in the need to protect the public, preferably children. If implemented correctly, this simple two-step program may be the difference between having your bill labeled as “disproportionate censorship” or “necessary protection of public interests.”

A catchy name is important. The title should target a clear and present danger so when you hear about the bill for the first time it immediately gets your support. For instance, a government would be wise to name a proposed restriction of online content by law the “Porno Bill.” After all, nobody wants to be the person who cheers for easy access to porn for 8-year olds. After the catchy name is set in place, it would be even wiser to add an explanatory note to the Bill stipulating that the object and purpose of it is to protect children. To be sure, the protection of children is a good and worthy cause and a valid rationale for many acts of legislation. However one must be mindful that not every legislation professedly aiming at the protection of children, in fact seeks to achieve that purpose.

So what if the Bill uses wide open-ended terminology, which potentially encompasses a wide array of content having nothing to do with child pornography, pornography more generally, or even children. As long as children are potentially protected from something and the proposed law is properly marketed to the public, the harm may go unnoticed.

This is in fact the strategy adopted by some Western Countries when introducing new censorship proposals.

Before passing the UK Audiovisual Media Services Regulations in 2014, which requires online porn to adhere to the same guidelines laid out for DVD sex shop-type porn by the British Board of Film Censors (BBFC), the UK Government considered a State-mandated restriction on online pornography. Under the considered (but not adopted) route, certain online contents would be restricted, by default, by Internet Service Providers (ISP). Put differently, it would have been up to customers to opt out from Internet filtering to receive access to adult content.

When this option was considered, then PM David Cameron met with ISPs to explore possible State-mandated restrictions on online content, and opened the issue for public consultation and discussion. He explained that the Government’s aim is to “fully explore every option that might help make children safer – including whether Internet filters should be switched on as the default, so that adult content is blocked unless you decide otherwise.” Then shadow culture secretary, Harriet Harman, also went on to say that “keeping children safe online is a real problem and a concern for millions of parents.”

Similarly, from late 2007 until early November 2012, the Australian Federal Labor Government pushed for a highly controversial State-mandated scheme whereby ISPs would be obliged to block adults’ access to online content. Any such blocked content would have been stipulated in list compiled by a governmental instrumentality, and according to what the Australian Government deems unsuitable. Here too, a mandatory compulsory filtering was proposed, and described as merely “an added step that can help protect children.” This proposal was softened and mostly withdrawn.

 Most recently, on 30 October 2016, the Israeli Government’s Committee on Legislation passed a resolution to support the legislation of the “Porno Bill.” Much like the earlier failed attempts worldwide, the explanatory note of the Porno Bill, inter alia, elucidated that, aside from the positive aspect of the Internet, it also contains materials “which may hurt and jeopardize the public and mostly children.” Accordingly, the Bill proposed a content filtering mechanism to shield children. Further, the Bill was sponsored by Parliament Member (MK) Moalem-Refaeli, who stressed, “the average age that children are exposed to pornographic sites is 8,” and she does not “think it is right to leave things like that.” Indeed, at least professedly, these arguments merit positive consideration.

But MK Moalem-Refaeli also justified the Bill and its predicating rationale by stating that: “as parliamentarians and public leaders, we must put up road signs that say ‘this is how we think society should behave.” And this is a far more problematic statement, which emphasizes much of the concern this type of bills raise.

What is the “Porno Bill” and how did it propose to protect children?

The Porno Bill reflects the most recent attempt by Israeli politicians to limit access to the Internet; six such attempts were foiled and/or withdrawn in the past few years. By and large, a decision of the Committee on Legislation, usually, ensures a bill with an automatic majority support in the Knesset, the Israeli Parliament, making this legislative iteration somewhat unique.

Under its catchy moniker, the proposed Porno Bill placed responsibility upon the Minister of Communication (currently Prime Minister Benjamin Netanyahu) to provide guidelines that define ‘pornographic’ and other ‘offensive’ content. The ISPs, in turn, were required, under the proposed Porno Bill, to limit access to such pornographic and offensive content as a default. Further, under the original Bill, an Internet user who would be interested in accessing any such prohibited content will be required to explicitly request to opt-out of this arrangement (i.e., restriction) by formally informing its ISP of its interest in accessing prohibited content.

Ostensibly, the Porno Bill enjoyed a relatively wide support from both the left and the right wings. Amongst the supporters of the Bill, one would find secular and religious representatives, Arab and Jewish KMs, men and women, and Coalition and Opposition members.

But the devil is in the details. The decision on what constitutes ‘pornographic’ and/or ‘offensive’ content, and the identity of the person that gets to make that decision, threatens to turn the Bill, originally meant to protect children from exposure to harmful content, into a tool for government-sanctioned censorship. In the Israeli society, a split society with exceedingly strong support for conservative ideas, the answers to these questions can be terrifying for some.

“Offensive Content”

Among the KMs that have explicitly attached their support to the Porno Bill one may find two members of ultra-orthodox Parties. The two subscribe to the relatively new extreme religious interpretation that men are not allowed to hear women singing. One of these KMs is known for imploring men to refuse military service, for soldiers face the risk of hearing women singing in ceremonies. Thus, for him, the mere sound of a woman qualifies as offensive content. The Porno Bill was also embraced by KMs who have declared in the past that same-sex marriages lead to the “destruction” the world and the integrity of our society. Another KM who pushed for the Bill, had, prior to his parliamentary position, paraded livestock and dogs in Jerusalem, equating them to the marchers in the Israeli gay pride parade. It stands to reason that for those who hold similar views, the mere sight of a same-sex couple holding hands is offensive.

As religious and conservative – and some would say bigoted – views gain traction in Israel many Israelis fear that providing their Government with the power to define obscenity and limit access to offensive contents will result in excessive limitation on speech in the Internet. A power that was given to the government, as reality has it, could rarely be taken back, especially when future politicians that will attempt to reverse censorship laws risk being labeled as threatening the wellbeing and safety of children.

“Black Lists”

The Porno Bill, as described above, left Internet users with the option to opt-out of the Bill’s restrictions. The opt-out mechanism should presumably mitigate the fear from government censorship by providing a more balanced approach. It was designated to offer a softer alternative to pure filtering of pornographic materials or strict prohibitions, as those adopted in certain countries (see the OpenNet Initiative for a global Internet survey).

Under the Bill, any person that would contact its ISP and requests to opt-out will be allowed unrestricted access to the interest. To comply with the Bill, the ISP would presumably be required to maintain a list of customers that formally requested access to unfiltered content, and make sure that them, and only them, are provided with such content; so far so good. But one must wonder: what would become of this list?

Just like the explanatory note of the Bill provides, “during the last decades the Internet turned the world into a global village, granting the public easy access to different kinds of information.” Thus, and precisely for the reasons underscoring the Bill, in today’s reality it seems that the question is not “would the opt-out list be provided to third parties?” nor is it a question of “would the list be leaked?” It is rather a question of “when.” And when this “Porno List” – it seems only logical to refer to the list as such, after all a catchy name is important – finds its way to the Internet, how would you explain the inclusion of your name in the list in, say, a job interview? The very threat that an ISP’s “black list” would leak would potentially deter people from waiving the default Internet screening, even if Government eventually defines “pornography” way too broadly.

For this reason, to some the opt-out mechanism seemed to be nothing more than an attempt to cloak government censorship with undue legitimacy.

The outcome and what remains to be seen

The public backlash was extensive and immediate, and before long the Porno Bill was the subject of extensive criticism in the on-line media and social networks. Like the UK and Australian proposal, the Porno Bill, notwithstanding its catchy name, was altered at an astonishing speed. Under the revised Bill, which was passed on 2 November 2016 in a preliminary reading (50:16:0), in lieu of the default censorship of offensive content and the opt-out mechanism, ISPs are obliged to contact their consumers and inform them via text message and email of an option to filter (free of charge) offensive content and offensive sites. This is not a significant change from current law that requires ISPs to notify Internet users of filtering options via mail.

Liberal proponents of free speech have joyfully announced the Internet to be yet again safe from governmental control; at least until the next time a politician is disturbed by offensive content. Indeed, MK Moalem-Refaeli rejected the criticisms against it saying that she “will continue fighting as the web is filled with content that we would all like to shield our children and youth from. Today it is easier to be consume porn than to by a Popsicle in a store.” Similarly MK Eitan Cabel, an outspoken member of the Opposition, another co-signor of the original Porno Bill, continued to express support for the proposed censorship. He explained that “as someone who was exposed to the issue in the educational system, I stand totally behind the bill.” As for the possible infringement of right and invasion of privacy by the Porno Bill, he deemed it “proportionate considering the risks to children, not to mention the exploitation of women.”

As ISPs and Internet companies, such as Facebook, struggle to self-regulate, governments seem to be increasingly eager to step in to fill the void by assuming more power. And while the rhetoric of protecting children is employed in the service of censorship, similar bills will resurface, as put it MK Karin Elharrar, a member of an Opposition party, who signed the original Porno Bill: “The truth is that when I signed it, it was out of a desire to protect children. But I must admit that upon reading it in depth, there were a lot of problems with it.”

* The views presented herein are exclusively those of the author and do not reflect the views of the affiliated law firm and/or its clients.

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Offensive content?

 

Book Review: ‘Human Rights and the Criminal Justice System’

IraRyk-Lakhman14 October 2016

Review: Anthony Amatrudo and Leslie William Blake, Human Rights and the Criminal Justice System Routledge, 2015, pp 182, GBP 90, ISBN:  978-0415688918

By Samantha Morgan –Williams (PhD Candidate & Academic Assistant at the Centre for Criminal Justice and Human Rights, University College Cork).

This volume addresses the grounding of criminal justice systems within a human rights based focus. The book is authored by academic lawyer, Leslie William Blake and criminologist Anthony Amatrudo. The authors assert that current criminal justice systems must consider the implications of legislation through the lens of human rights discourse. This is a statement which is both true and exceptionally timely post-Brexit vote, with a renewed political focus on human rights in the United Kingdom and growing support for the Conservatives’ plans to scrap the Human Rights Act 1998. The influence of such political posturing has created a Teufelskreis whereby the public view of human rights is at an all-time-low. This vicious circle brought about an increase in negative attitudes, which, in turn, has been coined by some as a ‘monstering of human rights.’

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Although human rights are increasingly considered to be a thorn in the political power’s side, it is unquestionable that the flip side of this is that the public’s awareness of human rights is at an all-time high. The increasingly negative views of human rights by the British public have been attributed directly to negative media representation of the European Convention on Human Rights and the European Court of Human Rights (ECHR or the ‘Convention’, and ECtHR respectively). The book is thus, part of a wider consideration of the increasing role and significance of human rights within international governance and global justice. The title is not intended to break new ground, but instead seeks to explore the effects of these new human rights implications upon the criminal justice system in a number of identified areas. These include: gender, terrorism, transnationalism, prisoner rights, new order ‘issues’ such as kettling and existing legal structures and court practices. An examination of these is warranted and necessary, as according to the authors, ‘human rights have eclipsed the rhetoric of religion in contemporary moral discussion’ (p 1).

The book commences with Chapter 1: ‘Human Rights and the Criminal Justice System,’ a rather broad title which blurs the content of this chapter somewhat, citing the works of Manuel Lopez-Ray, Stanley Cohen, and Lucia Zedner in order to show three paradigm treatments of human rights within academic Criminology. The aim here is seemingly to throw light on contemporary theory and practise (p1-2). However, for a book intended for use by both students and academics interested in this area, the explanation of each of the aforementioned is arguably a little thin in order to be of benefit to the former intended readership.

Chapter 2, ‘ECHR and contemporary human rights thinking’, provides a solid background to studies on the Convention and its application in contemporary criminology, focusing largely on its roots in order to better understand its placement within contemporary criminal justice systems. Indeed, the authors raise some interesting points regarding the Convention’s current position in the UK political mind-set recognising on-going plans to repeal the Human Rights Act 1998 and replace it with a “British Bill of Rights” (p23). This approach leads well into Chapter 3, ‘Human rights in British and European Law,’ where the authors address the basis of the Common Law and explain the key differences between Scots law and British law (pp 38-46). Despite the title’s focus, the authors also provide analysis of both Commonwealth (p 51) and US systems of rights (pp 43-5) in this chapter, which lends important comparative insight to this section.

ECtHR Getty Images

Chapter 4, ‘Recent court cases and their principles’, highlights the core principles of recent court cases concerning police powers, surveillance, and the collection of data. This chapter offers an interesting read for anyone concerned with the right to protest (p 52), or other topical issues such as the ‘kettling’ of children (pp 57-8). Blake also explores the case law concerning proliferating police powers of surveillance and the collection of data (pp 54-6). The examined cases such as Castle & Ors v. Metropolitan Police Commissioner and Wood v Commissioner of Police for the Metropolis are subject to in-depth and thorough analysis (pp 58-61). Particularly noteworthy here is Blake’s treatise of the case of Brian Haw, known for his one-man demonstration in Parliament Square – who argued that retrospective criminal legislation breaches both the Common Law and Article 7 & 10 of the ECHR (pp 60-4). As such, the text provides a solid analysis of recent jurisprudence in this emerging area, and excellent consideration of the key principles in these cases. However, the success of this analysis is marred slightly by the fact that this book has no section dedicated to such cases, as is characteristic of a legal text. Instead, the cases referenced throughout the text are included in the index. While this could be owing to the book’s intention to straddle both the criminological and legal genres, this oversight does somewhat detract from this book’s potential to be used, as intended (and explicitly outlined by the authors on the back cover), as an accessible reference point for both undergraduate and postgraduate students and lawyers.

 

The subsequent Chapters continue to address interesting and highly topical issues for both law and criminology, such as race and gender (Chapter 5), victims and victimology (Chapter 6), terrorism (Chapter 7) transnationalism (Chapter 8) and prisoner’ rights (Chapter 9). Each of these provides a solid grounding in the key issues, and a well thought-out insight into the juxtapositioning of human rights norms and protections against the aims of the criminal justice system. However, in some of these sections, the line of enquiry is marred by the selectivity of the authors’ exploration of the topic in question. For example, in Chapter 9, The Rights of Prisoners, the recent prisoner disenfranchisement debate in the UK is skimmed over in just a page. It is suggested that Amatrudo and Blake, therefore, may have missed an excellent opportunity here to highlight the conflict between international human rights obligations and domestic criminal justice systems, which is characterised by the heated and acutely topical prisoner voting debates. Especially as the prisoner disenfranchisement debate has been so prevalent within the anti-human rights rhetoric in the United Kingdom both within the criminal justice system and further afield.

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Regarding the focus on human rights, the depth of such exploration varies throughout the book and most notably between the two contributing authors. Throughout the text, and in an arguably timely stance, Blake consistently makes clear in his contributions that the Human Rights Act 1998, and its incorporation of the ECHR into domestic law, has achieved a great deal. To support his contention Blake emphasises, in particular, the role of the Act in protecting UK citizens from abuses by the State. Amatrudo, however, is less convinced of this, and generally takes a much broader view of the scope of human rights throughout his contributions. This difference in stance towards human rights makes itself clear throughout the text, and ultimately it is not hard to discern from both subject matter and tone of the book’s chapters which contributions were made by which author.

Notwithstanding this, the book largely contributes understanding to an area of proliferating importance. Yet, somewhat ironically, the structure of the work serves to undermine the book’s usefulness as an academic reference for students. As in focusing on ‘key’ topics, the book’s analysis is, by its very nature and essence, limited to these selected topics. Further, as the work itself is structured around these issues with nine chapters dedicated to each of these topics, the book reads almost like an anthology or collection of essays as opposed to a stand-alone work. Although the book does include a conclusion by the authors, it is lacking a foreword or even an introduction which could have eased accessibility for the reader and which would have simultaneously provided insight into why these exact nine topics were chosen for discussion, at the expense of other perhaps more relevant topics. The omission of such an introduction largely detracts from what is a well-written book with excellent case law analysis and some interesting lines of thought, and instead renders the text somewhat inaccessible as a reference point for students.

To summarise, while this book contributes to an increasingly important area of scholarship, namely the intersection of criminology and human rights, there are a few areas which undermine this book’s scope to contribute at the intended level to such debate. The contribution possesses the potential of offering an encompassing compilation on the topic for those with no prior knowledge. Yet, the treatment of the ‘key’ topics can seem rather piecemeal and as a title, this contribution therefore seems more suited to those with a good level of pre-existing knowledge in either criminal justice or human rights.

 

Mental Injury and the Law: Time to move on from Hillsborough

IraRyk-Lakhman19 September 2016

By Alexander Shea (Barrister in Training; MPhil International Relations, Oxford; BA History, LSE First Class Hons)

Last October (14 October 2015), a ‘Negligence and Damages’ Bill was introduced into Parliament. A Private Members’ Bill (PMB) sponsored by the backbench Labour MP, Andy McDonald, the Bill challenges an entrenched hierarchy in the law whereby damages for physical injury inflicted through the negligence of a third party are easier to obtain than if those injuries are psychological.

In challenging this hierarchy, the Bill reflects changing attitudes towards mental health in Britain. A 2015 survey of 1,734 adults conducted by the King’s College London Institute for Psychiatry, Psychology and Neuroscience in conjunction with the mental health charity MIND, found that ninety-one percent of Brits agree that mental illness merits increased recognition within society. British workers are also now more willing than before to disclose their own mental health conditions. As documented in The Department for Health’s annual Health Survey England report, a report that interviews ten thousand Britons each year to identify changes to their lifestyle and outlook on health, between 2003 and 2008 alone the prevailing attitude toward mental illness amongst the British populace reversed course. Whereas in 2003, respondents suggested that the overwhelming stigma attached to mental health meant they would be likely to ‘hide away’ any problems they might have, by 2008 respondents argued that they were increasingly expressing feelings attached to even low and moderate stress with friends and family. This change in attitude was seen amongst individuals from a variety of occupational sectors, from teachers to bankers, right through to the military.

Despite these changes, a historical lag exists between evolving social attitudes and case law. Whilst attitudes toward mental health are changing on a yearly basis, the referent point underpinning the law’s approach to psychological injury is still found in 1989 and the events of Hillsborough (the ‘Hillsborough Disaster’; see here for additional background). The Hillsborough Disaster refers to the event of 15 April 1989 when a human crush occurred in the Leppings Lane stand of Hillsborough Stadium in Sheffield, during an F.A. Cup  semi-final  between Liverpool and Nottingham Forest. The events resulted in 96 fatalities and over 760 injured.

Hillsborough was the worst disaster in British sporting history. It was also an event, however, that brought to a head a series of social tensions then at work within Britain- tensions that drove to the heart of mental health’s status under the law and made Hillsborough a key event in determining legal precedent. To understand this, it is important to appreciate that the aftermath of Hillsborough was played out amongst society in an acutely psychological fashion as a clash of competing media narratives and accusations. The visceral imagery, stories and trauma of the day became the subject of an acrimonious debate between the South Yorkshire Police Force, which suggested that the footage and photographs of the day indicated that drunken, ticketless fans were responsible for the crush, and the victims and their families who countered that the evidence pointed to police negligence as precipitating the crush. Hillsborough now a public scandal and with the Taylor Inquiry of 1990 broadcasting to the nation haunting stills, photographs and witness testimony of the day, the mental trauma of Hillsborough as an event rather than a mere site of physical injury became apparent to all.

96 people were killed and 766 injured (Picture: Hillsborough Project)

As the Taylor Inquiry soon laid bare that it was police negligence that triggered the crush, and worse that the police had orchestrated a cover-up to conceal their responsibility for events and shift the blame onto football supporters, the police was encouraged to issue an apology. The Taylor Inquiry noted that the police’s position had exacerbated the mental suffering of survivors and families in both demonising Liverpool fans and denying the police’s own role in events.

Hillsborough is remembered primarily for the physical injuries it saw. Often overlooked, however, is that it also inflicted psychological damage. Family members who were seated in different sections of the stadium to their loved ones watched helplessly as the crush developed in the lower tier of the Leppings Lane stand. Broadcast live on television and radio, the trauma was transmitted directly to thousands who had family at the game. Hours after waving away family members, next of kin identified their bodies.

Many witnesses to such events developed post-traumatic stress disorder (PTSD). This PTSD was not always the result of being overwhelmed by one exceptionally traumatic event, such as identifying a loved one’s body. For many, the trauma accumulated in more gradual fashion, consequent, for example, to the daily moral attrition of coming home each night to a newly-handicapped spouse.

Hillsborough thus lay at the intersection of three developments that made the question of mental injury central to any legal analysis of it. First, the event itself was lived as a traumatic event of visceral images and sounds by those who witnessed it. Second, it was processed in a uniquely psychological manner in a clash of media narratives centred around claims of drunken, thuggish football fans. Third, it evolved at a time when mental illness was receiving increasing consideration under the law. Following Parliament’s passing of the 1974 Jurors Act and the 1983 Mental Health Act, English and Welsh common law was forced to consider mental illness as a legal category unto itself that would require its own set of case law. Hillsborough thus came at a time of ‘legal awakening’ with regard to mental illness, even if the courts’ first judgements in this area were not particularly liberal. These three developments combined, Hillsborough was to be a seminal event in legal history, the moment when case law would have to confront the question of psychiatric injury.

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Newspaper reports attacking Liverpool fans for Hillsborough Disaster (BBC News)

In the 1991 case of Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, ten claimants sought damages for the mental injuries they incurred following Hillsborough. They made their claims as ‘secondary victims’ of that day’s event. None had been present in pens 3 and 4 of the Leppings Lane stand where the crush occurred. Their relation to the event was thus not primary, in that they were not the ones in imminent danger of being crushed. Instead they were indirect victims. Their injury was the result of processing the harm that had been inflicted on their loved ones.

Two of the claimants were at the match.  Both suffered emotional distress after seeing the crush from adjacent stands whilst knowing their brothers were in the Leppings Lower. Another claimant fell ill after identifying her son’s body just eight hours after watching him leave home. Further claimants were traumatised via television or radio, mediums that conveyed the danger their loved ones were in.

The claims of all ten were dismissed. To understand why is to understand the anachronism of today’s case law.

Providing judgement, Lord Oliver outlined four cumulative criterion that set an extremely high benchmark for any claim to succeed. Termed the ‘Alcock Principles’, to qualify for damages, a victim of mental injury sustained after witnessing harm brought upon a loved one through the negligence of a third party must:

  1. Have a relationship of love and affection with the primary victim
  2. Have direct perception of the event with unaided senses
  3. Have proximity to the event or its immediate aftermath
  4. Experience psychological injury via a single nervous shock.

“A relationship of love and affection” was presumed to exist only between parent and child and spouses.  Claimants who lost siblings, grandchildren, or others therefore were excluded.

The second clause disqualified the witnessing of events via television or radio. The UKHL judges argued that experiencing events in this mediated fashion was less traumatic as it encouraged disassociation.

‘Direct perception of the event’ meant the claimant must have actually seen their family member be injured amongst the crowd. Witnessing a crush and presuming a loved one was injured was not enough.

The third criterion reinforced the ruling’s restrictive ethos. Proximity was whether one’s injury occurred close enough in time to the event, to be determined arbitrarily by the judges. The eight hours that expired before the mother identified her son were deemed excessive.

This may appear rather odd to the layman.  When the Hillsborough Disaster is referred to as an ‘event,’ what comes to mind is a chain of developments that progressed inexorably from one to another. The massing of fans prior to kick-off, the scrambling over fencing for survival, family members arriving at mortuaries – all these constitute a single time-lapse of eight to ten hours that we consider to represent a discrete event.

(John Giles/PA)

In contrast, the judges interpreted the notion of an ‘event’ rather differently. Rather than accept that an event could refer to a series of interconnected developments that spun over a number of hours, the judges argued that an event could only ever refer to a single incident that occurred at a single moment in time and which must be isolated from the developments that preceded and followed it.  The judges limited police liability solely to the exact moment when the trampling of bodies occurred. Where this is the elucidation of ‘event’, damages would be awarded only to those whose psychological injuries happened at this precise time.  This excluded victims whose mental injury was sustained cumulatively. As Lord Oliver noted in his judgement, excluded was:

“psychiatric illness caused by the accumulation of gradual assaults on the nervous system.”

Often, psychological injury, its ‘flashbacks’ and symptoms only emerge cumulatively months after the event at a pace the patient can tolerate. Alcock therefore advanced a legally neat principle. But it is one that is discriminatory.

Furthermore, experiencing an event via radio or television does not safeguard from mental illness. As Amit Pinchevski notes in a 2015 article, we have known since the 1960’s that individuals develop PTSD via broadcasts. Jennifer Ahern has documented the thousands of cases of PTSD amongst those who watched 9/11 on television. Similarly, drone pilots (operators) whose active participation of the battlefield is mediated by screens nevertheless develop intense trauma (see more on this point here, here, and here).

Emphasis on direct perception of events is arbitrary. A series of cases such as Wild v Southend NHS Trust (2014) EWHC 4053 (QB) have failed due to the claimants’ trauma stemming from the mental realization of the death of a loved one rather than the direct perceiving of the death itself. In Wild, the claimant’s appeal was dismissed because it was impossible for him to have directly seen the in utero death of his stillborn child. That learning the shocking fact of the death of a loved one- as long as one does not see it- is deemed acceptable by the law is clearly unjust.

The Negligence and Damages Bill provides a corrective to Alcock. The Bill extends the relationships presumed to involve a “close tie of love and affection,” enshrines a duty of care for psychiatric wellbeing covering both sudden and gradual nervous shock and removes the requirement of proximity. However, despite having initially been scheduled to have its second reading debate in Parliament on the 22nd of January 2016, the Bill has yet to resurface in Parliament.

This is less to do with the Bill’s inadequacies as it is to do with what the chair of the House of Commons’ Procedure Committee, Charles Walker MP, has described as a “corrupt” and “shambolic” system when it comes to hearing Private Members Bills (PMBs) in Parliament. Walker has described how ’98 percent’ of PMBs are actually “government handout bills,” outsourced to backbench MPs with full departmental support and the promise of sufficient Parliamentary time so that they reach statute. This allows the government the flexibility to make amendments to its legislative agenda, or disassociate itself from more controversial proposals that it nevertheless wishes to see discussed. The result of such practices, however, is that items such as the Negligence and Damages Bill are pushed down the agenda.  When due to reappear in Parliament on the 22nd of January, the Bill was listed behind eight other PMBs that were accorded priority over it. The result was there was little chance that the Bill’s second reading would be heard. The identical scenario produced itself on the 16th of April 2016 when the Bill was once again up for second reading. The 2015-2016 parliamentary year thus reached its end without the Bill receiving a ‘carry over’ motion for it to continue to receive consideration in the 2016-2017 sitting. For all intents and purposes therefore, the Bill has been shelved.

Theresa May has promised a government that will work not for the few, but for the many. Changes in public attitudes towards the mentally ill mean that the latter are no longer treated as a group apart from society, but rather as an increasingly recognised part of the body politic. If May really wishes to lay claim to the social interventionist legacy of the Victorian reformer Joseph Chamberlain, she would be well advised to address one of the law’s most entrenched injustices. It is time that the mentally injured are recognised by our courts.

(Getty Images/ Christopher Furlong)