Week 20: Freedom of expression and prisoner voting rights

Question 1

Examples of contempt of court (criminal contempt)

Answer 1

• Scandalising the court
• Prejudicial publications

Question 2

When does something prima facie constitute defamation?

Answer 2

• The statement must refer to the claimant, either explicitly or (judged on the basis of the inferences that an ordinary sensible person would draw from what has been said) implicitly.
• The statement must be published—that is, it must be issued to someone other than the claimant or the defendant’s spouse.
• The statement must be defamatory.

Question 3

In common law, what determines if a statement is considered defamatory?

Answer 3

if it ‘[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do’

Question 4

Defamation Act 2013 on a ‘defamatory statement’

Answer 4

says that a statement will only be defamatory if ‘its publication has caused or is likely to cause serious harm to the reputation of the claimant’

Question 5

What is Freedom of Expression?

Answer 5

• Freedom of expression is the right to express and receive opinions, ideas and information… Accompanying this right are responsibilities held by the government, by media, by technology intermediaries, and by citizens. It is subject to legal limits…
• Free for all? Freedom of expression in the digital age, 1st Report of Session 2021–22 HL Paper 54, p.5

Question 6

What is the scope of freedom of expression

Answer 6

• The right extends further than just the right to make speeches. It extends to all forms of expression. Together, freedom of expression and freedom of association cover the right to form societies with lawful aims, even where those aims are not shared with the majority, and the right to peaceful protest.”
• Freedom of Speech in Universities Fourth Report of Session 2017–19 Report, HC 589, HL Paper 111 p.3

Question 7

Describe freedom of expression as a value

Answer 7

• Is about individual autonomy
• Autonomous individuals should be free to express themselves (see e.g. Sadurski, Barendt)
• Autonomous individuals should also be able to hear and consider what others have to say

Question 8

Explain freedom of expression as a democratic value

Answer 8

• allows essential expression and contesting of ideas (John Stuart Mill)
• ensures people can make informed choices (Alexander Miekeljohn)
• promotes tolerance (Joseph Raz)
• has constitutional value - Handyside v The UK (1979):

Question 9

Why protect freedom of expression?

Answer 9

Freedom of speech has intrinsic value for individual autonomy

• People should be allowed to express themselves
• People should be able to hear and think about what others say

Freedom of speech has beneficial consequences

• Freely circulating ideas is the test of truth
• Freedom of speech is the ‘lifeblood of democracy’

Question 10

How is freedom of expression limited

Answer 10

Legal safeguards protect those who may be vulnerable. One person’s abuse of their right to freedom of expression can have a chilling effect on others.

Despite being restricted it does not mean that you cant say anything that may be considered harmful or upsetting

Question 11

Describe how the court balancing of values, rights and obligations in freedom of expression

Answer 11

In terms of values:
Free expression v Privacy and Public safety

In terms of rights:
Of Speakers v Of Listeners

• Appropriateness of limitations will depend on rationale for free expression
• There is a distinction between legal and political debate about freedom of expression

Question 12

Explain the right to protest in UK law and under the ECHR

Answer 12

No explicit right to protest
Combination of freedom of association and freedom of expression = right to protest
In UK law

• “Peaceful protest has a long history in the United Kingdom and is a cornerstone of democracy… Many people value the right to protest, regarding it is an important way for citizens to express their opinions about a wide range of policy issues and to seek to influence the Government and other powerful organisations.” (JCHR, Demonstrating Respect for Rights, (2009), p.1

Under the ECHR

• “The right to peaceful protest is a cornerstone of democracy, which should be championed and protected rather than stifled. It is protected in law by the Human Rights Act 1998, as an aspect of the rights to freedom of expression and freedom of assembly, guaranteed by Articles 10 and 11 of the European Convention on Human Rights (ECHR). While restrictions on protest may be justified in the interests of preventing disorder and protecting the rights of others, a degree of tolerance towards disruption is necessary.” (JCHR, Legislative Scrutiny: Public Order Bill, (2022), p.1

Question 13

Explain recent trends and issues regarding freedom of expression

Answer 13

Prevent duty – counter-terrorism measures

Press freedom and phone hacking – Leveson Inquiry, subsequent regulation and cases

Academic freedom – Higher Education (Freedom of Speech) Act 2023

Freedom of expression in the digital age – The Online Safety Act 2023

Protests – free speech, public order offences, climate campaigns, anti-war protest

Question 14

Under which article is the right to freedom of expression protected by the ECHR

Answer 14

Article 10

Question 15

Describe the scope of convention rights and protection

Answer 15

Absolute rights

• Rights that must be protected and cannot be limited (e.g. Art.3, freedom form torture)

Limited Rights

• Some rights can be limited under specific and finite circumstances (e.g. Art.5, right to liberty). The right and the circumstances in which limitation is lawful are set out in the article

Qualified rights

• For some rights a balance needs to be struck between the rights of individuals and the interests of others (e.g. Art.10, freedom of expression)

Derogation

• States can derogate from certain Convention rights in time of “war or other public emergency threatening the life of the nation.” (Art.15) The right will not apply during that time

Question 16

What are absolute rights?

Answer 16

Rights that must be protected and cannot be limited (e.g. Art.3, freedom form torture)

Question 17

What are limited rights?

Answer 17

Some rights can be limited under specific and finite circumstances (e.g. Art.5, right to liberty). The right and the circumstances in which limitation is lawful are set out in the article

Question 18

What are qualified rights

Answer 18

For some rights a balance needs to be struck between the rights of individuals and the interests of others (e.g. Art.10, freedom of expression)

Question 19

What is derogation

Answer 19

States can derogate from certain Convention rights in time of “war or other public emergency threatening the life of the nation.” (Art.15) The right will not apply during that time

Question 20

What kind of right is the freedom of expression under the ECHR

Answer 20

qualified right

Question 21

Describe the legitimate restrictions on article 10

Answer 21

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 a 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 maintaining the authority and impartiality of the judiciary.

Question 22

What is protected by Article 10(1)

Answer 22

• Expression’ covers more than just ‘speech’:
• written or spoken words, pictures, images and actions intended to express an idea or present information (Müller and Others v Switzerland (1991) 13 EHRR 212)
• Offensive, shocking, disturbing information:
• Art.10 protects “the information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also, those that offend, shock or disturb; such are the demands of pluralism, tolerance and broad-mindedness without which there is no democratic society.” (Handyside v UK (1979-80) 1 EHRR 737)
• Opinions and value judgements:
• “… a careful distinction needs to be made between facts and value judgements. The existence of facts can be demonstrated, whereas the truth of value judgements is no susceptible of truth…[requiring proof of these judgements] is impossible… and infringes freedom of opinion.” Lingens v Austria (1986) 8 EHRR 407, para.46

Question 23

Explain the importance of a free press

Answer 23

Lingens v Austria: questioning politician’s suitability for office:
“These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the reputation of others’, it is nevertheless incumbent on them to impart information and ideas on political issues…Not only does the press have the task of imparting such information and ideas: the public has a right to receive them… Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.” (1986) 8 EHRR 407, paras 41-42

Thorgeirson v Iceland (1992) 14 EHRR 843 – allegations of brutality against police. applicant ordered to pay a fine following a publication of article allegating police brutality. Held interference wasnt proportionate.

Jersild v Denmark (1995) (1995) 19 EHRR 1 – programme about racist group. Journalist convicted of aiding spread of racist hate. Had interviewed group of young people who made racist remarks. Held conviction was breach FoE as they hadnt spread racist remarks themselves

Question 24

Give examples of legitimate aims of article 10(2)

Answer 24

National security
Territorial integrity
Prevention of disorder or crime
Protection of health or morals
Protection of the reputation or rights of others
Preventing disclosure of information received in confidence
Maintaining the authority and impartiality of the judiciary

Question 25

When analysing qualified rights the European Court of Human Rights asks what 4 questions?

Answer 25

1. Has there been an interference with the right?
2. Was the interference ‘prescribed by law’?
3. Did the interference have a legitimate aim?
4. Was the interference ‘necessary in a democratic society’?

Question 26

How does the ECtHR analyse if there was an interference?

Answer 26

• Interference with the right to freedom of expression may entail a wide variety of measures, generally a “formality, condition, restriction or penalty” (Wille v. Liechtenstein Application no.28396/95))
• In FE cases no need to consider the characterization of the interference by the domestic courts, just need to examine the possibility of a “chilling effect” on the exercise of the right (see ECtHR, “Guide on Article 10 of the European Convention on Human Rights”, August 2022).

Question 27

How does the ECtHR analyse if the interference was ‘prescribed by law’?

Answer 27

• Is the provision “sufficiently precise”?
• Are the consequences foreseeable?

Question 28

How does the ECtHR analyse if the pursuit is of a legitimate aim?

Answer 28

• Is the provision “sufficiently precise”?
• Are the consequences foreseeable?

Question 29

Why is the margin of appreciation relevant?

Answer 29

• Relevant to determining the necessity of restrictions, and whether there is a pressing social need for interference with the right by the state.
• ECtHR more likely to defer to national court to make the initial assessment. BUT the ECtHR makes the final ruling
• First articulated in (Handyside v UK (1979-80)

Question 30

How does the ECtHR establish whether interference is necessary

Answer 30

1. Pressing social need?

• This is where the margin of appreciation comes in
• Court will restrict the margin of appreciation where press freedom is restricted (Sunday Times v The UK (No.2). Application no.13166/87))

2. Nature and severity of the sanctions

• Court particularly attentive to censorship
• Has as the State adopted the least restrictive measures?
• Court looks for relevant and sufficient reasons

3. Balancing conflicting rights

• Art 6 – free and impartial hearing
• Art 9 – freedom of religion
• Art 11 – freedom of assembly and association
• Art 1, Protocol 1 – protection of property

Question 31

Types of expression from lower margin of appreciation to higher

Answer 31

Politics/matters of public concern

• Lingens v Austria (1986) 8 EHRR 407
• Thorgeirson v Iceland (1992) 14 EHRR 843
• Maronek v Slovakia (2004) 38 EHRR 5

Literary/cinematic/artistic

• Otto-Preminger Institute v Austria (1995) 19 EHRR 34

Commercial, e.g. advertising

• Markt Intern Verlag GmbH v Germany (1990) 12 EHRR 161

Question 32

Explain the protection of freedom of expression in the UK

Answer 32

• Common law
  “..whereas article 10 of the Convention … proceeds to state a fundamental right and then to qualify it, we …proceed … upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.” Lord Goff, A-G v Observer Ltd. and Others [1990] 1 A.C. 109
  The common law meets the standards of Art.10 (see e.g. Derbyshire CC v The Times [1993] A.C. 534)
• Human Rights Act 1998
  Sections 1, 2, 3, 4, 6, 7
• Scotland Act 1998
  s.29; s.57
• The ECHR
  Article 10
• Government policy and practice

Question 33

Explain the scope of convention rights and protection in the UK

Answer 33

• Legitimate aims, Art 10(2) ECHR: Restrictions in UK Law
• National security: State security laws
• Territorial intergrity: State security laws
• Prevention of disorder or crime: public order; hate speech
• Protection of health or morals: Obscenity laws
• Protection of reputation/rights of others: Defamation; equality & regulation of media
• Preventing disclosure of confidential information: Privacy laws & Regulation of media
• Maintaining authority and impartiality of the judiciary: Contempt of court & Regulation of media

Question 34

Explain the state security laws relating to FoE

Answer 34

Breach of confidence

• Disclosing information which you know or ought to know relates to state secrets - Attorney-General v Observer [1990] 1 AC 109 – would a remedy serve the public interest?

Official Secrets Acts

• Official Secrets Act 1911: spying - Chandler v DPP [1964] AC 763
• Official Secrets Act 1989: disclosure of sensitive information - ss 1-4: create criminal offences which may be tried in the High Court or Sheriff Court.
• Very limited defences
• R v Shayler [2002] UKHL 11 – no defence of ‘public interest’

Official Secrets Act – reform

• National Security Act 2023 – repeals Official Secrets Acts; three separate espionage offences: obtaining or disclosing protected information; obtaining or disclosing trade secrets; and assisting a foreign intelligence service

Investigatory Powers Acts

• Investigatory Powers Act 2016: concerns about protection of journalistic sources

Defences are constrained

Question 35

Explain public order and hate speech in relation to FoE

Answer 35

Regulation of marches and parades, etc

• Civic Government (Scotland) Act 1982, Part V
• Public Order Act 1986, ss 12 and 14-16

Breach of the peace

• common law offence

Racist acts or remarks

• Hate Crime and Public Order (Scotland) Act 2021 – Part III – offences of stirring up hatred.
• Incitement to racial hatred: Public Order Act 1986, Pt.III
• Incitement to religious hatred/hatred on grounds of sexual orientation: Public Order Act 1986, Pt.IIIA
• Criminal Law (Consolidation) Act 1995; Crime and Disorder Act 1998

Threatening communications

• Harassment: Protection from Harassment Act 1997; Criminal Justice and Licensing (Scotland) Act 2010
• Online Safety Act 2023

Question 36

Describe how obscenity is controlled by FoE

Answer 36

Publication of Obscene material

• Obscene Publications Act 1959
• Civic Government (Scotland) Act 1982, s.51: criminal offence to ‘display any obscene material in any public place or in any other place where it may be seen by the public’; new offence of possession of extreme pornographic images

Question 37

Describe legislation in which defamation is controlled by FoE

Answer 37

Statutory basis

• Defamation Act 2013
• Defamation and Malicious Publication (Scotland) Act 2021 (see Explanatory Notes for an overview)

Defamation

• DA 2013 s.1: ‘Making false statements that injure the reputation of a person’ – need to show evidence of actual harm caused, or likelihood of future harm (Lachaux v Independent Print Ltd [2019 UKSC 27]

Defences

• DA 2013 s. 2 Statement is “substantially true”
• AD 2013 s.3: honest opinion – (a) statement of opinion, (b) basis of opinion, (c) an opinion that an honest person could have held at the time
• Privilege – absolute or qualified (defendant acted maliciously)

Damages
Reform

Question 38

Describe legislation in which privacy is controlled by FoE

Answer 38

Action for breach of confidence

• Campbell v Mirror Group Newspapers [2004]: ‘misuse of private information’ – whether defendant knows or ought know that claimant can reasonably expect privacy to be respected
• PJS v News Group Newspapers Ltd [2016] UKSC 26 – right to respect for private life upholds confidentiality and guards against unwanted intrusion

See further Elliott and Thomas, pp 847-852

Question 39

Describe legislation in which contempt of court is controlled by FoE

Answer 39

“Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms” –Att.-Gen. v Punch Ltd[2002] UKHL 50 at [2]

Contempt of Court Act 1981: Prejudicial publications

• Sunday Times v UK (1979-80) 2 EHRR 245 – injunction not necessary
• S.1 – strict liability rule – risk that justice will be prejudiced must be substantial
• s.2 – limitation of scope of strict liability rule - risk of serious prejudice (see MGN v Attorney-General [1997] EMLR 284)
• s.5 – discussion in good faith on matters if public interest (AG v English [1983] 1 AC 116)

Question 40

How is the media regulated under FoE

Answer 40

The media

• Theatre and Cinemas: Theatres Act 1968; Cinemas Act 1995
• TV broadcasting: Communications Act 2003; see also Pro-Life Alliance v BBC [2004] 1 AC 185
• The internet: Criminal Justice and Licensing (Scotland) Act 2010; Investigatory Powers Act 2016
• The press

Newspapers and magazines (the Press)

• No licensing
• Voluntary regulation
• Main constraints: defamation; contempt of court; privacy/confidentiality
• Leveson Inquiry reported in 2012 (see www.levesoninquiry.org) – Press Recognition Panel.
• In Scotland, an expert group considered the recommendations of the Leveson Inquiry. See: http://www.gov.scot/resource/0041/00416412.pdf

The Internet

• Defamation Act 2013, s.5(2), Defamation and Malicious Publication (Scotland) Act 2021 s.34
• The Online Safety Act 2023

Question 41

Give some arguments in favour of prisoner disenfranchisement

Answer 41

• Social contract – by committing a crime a person has broken the social contract, put themselves outside the law. Disenfranchisement is a sanction for breaking the social contract
• Corruption of democratic process – an argument adopted in the USA. Prisoners, people who had committed crimes, cannot be trusted to make decisions about who to elect
• Norm setting – disenfranchisement sends a powerful message about the importance of obeying the rules.

Question 42

Under what article are prisoners rights protected by the ECHR

Answer 42

Protocol 1 Article 3

Question 43

(6)

Give some arguments in favour of prisoner enfranchisement

Answer 43

• Undermining the social contract - power wielded without authority
• Testing the limits of liberty - “tantamount to the elected choosing the electorate” (Hirst (No2))
• Social construction of of liberty - marginalized are over-represented in prison populations
• Prisoners as “other” – prisoners become ’othered’ and easier to exclude
• Reconnecting with the community – when returning to the community
• Unequal distribution of punishments

Question 44

What is the relevent legislation for prisoner voting rights in ECHR

Answer 44

Art.3, Protocol 1
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Question 45

What is the relevent legislation for prisoner voting rights in the UK

Answer 45

Representation of the People Act 1983, s.3

(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government election.
(2) For this purpose—
(a) “convicted person” means any person found guilty of an offence … but not including a person dealt with by committal or other summary process for contempt of court …
(c) a person detained for default in complying with his sentence shall not be treated as detained in pursuance of the sentence …
(3) It is immaterial for the purposes of this section whether a conviction or sentence was before or after the passing of this Act.

Question 46

What is the relevent legislation for prisoner voting rights in Scotland

Answer 46

Scottish Elections (Franchise and Representation) Act 2020 - Part 3
- allows some prisoners to vote

Question 47

What is the leading case in regard to prisoner voting rights

Answer 47

Hirst v UK (No.2) [2005] ECHR 681

Question 48

Explain the case of Hirst v UK (No.2) [2005] ECHR 681

Answer 48

UK legislation preventing all convicted prisoners from voting in elections violates the ECHR
Representation of the People Act 1983, s 3 breached the right to vote in Art 3 of the First Protocol to the ECHR:

• “Such a general, automatic and indiscriminate restriction on a vitally important Convention right had to be seen as falling outside any acceptable margin of appreciation”
• Prisoners could be prevented from voting, but it is unlawful to impose a ban applied automatically to all prisoners irrespective of their crime or their circumstances.

Normally, margin of appreciation would apply on such matters.

• In other cases, ECtHR found no violation for more limited bans on prisoner voting (Holland v Ireland; Mathieu-Mohin v Belgium)
• However, an automatic and indiscriminate ban on the right to vote doesn’t fall within the margin of appreciation.

Question 49

prisoner voting rights

Explain the case of R (Chester) v Secretary of State for Justice [2013] UKSC 63

Answer 49

UKSC unanimous that the relevant provisions of RPA 1983 were incompatible with Art 3 of the First Protocol to the ECHR and ruled that this incompatibility could not be cured by way of HRA s 3.
BUT no declaration of incompatibility issued as the matter was ‘under active consideration’ in Parliament.
A broader impact on HRA on the judiciary’s understanding of ‘democracy’ – decoupling of democracy and majoritarianism:

• Lady Hale at [88]: “Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities.”
• Lord Sumption at [112]: “ The protection of minorities is a necessary concern of any democratic constitution”

Question 50

Prisoner voting rights

Explain the outcome of the Hirst decision

Answer 50

“It makes me physically ill even to contemplate having to give the vote to anyone who is in prison. Frankly, when people commit a crime and go to prison, they should lose their rights, including the right to vote.”
Prime Minister David Cameron, Hansard, HC Deb. 3 November 2010, Vol.517, Col. 921

• No measures to address the violation found in Hirst, - Council of Europe’s Committee of Ministers expressed ‘profound concern’ that the blanket ban remained in place and reminded the UK that it “has an obligation to abide by the judgments of the ECtHR”.
• Some administrative reforms were made - defendants notified of their loss of the right to vote when they are sentenced as well as being able to vote when they are on temporary release, which satisfied the Council of Europe.
• In Scotland:
• Franchise Act 2020 - prisoners serving sentences totalling 12 months or less can register and vote in Scottish Parliament and local government elections

Question 51

Outcome of prisoner voting rights in Scotland

Answer 51

• Smith v Scott [2007] CSIH 9
  The Court of Session (sitting in its capacity as the Scottish Electoral Registration Court) issued a declaration of incompatibility under HRA, s 4.
• Scottish Elections (Franchise and Representation) Act 2020
• Prisoner Voting Survey 2022 (Scottish Government)
  “the majority of prisoners who voted in the 2022 Scottish Local Government elections, and who completed the survey, felt that the processes put in place to facilitate voting could benefit from further consideration and improvement”
• Prisoner Voting in Devolved Elections (Scottish Government, 2023)
  “there is not at present sufficient data available to assess the impact of any potential change to the sentence threshold” and Scottish Government “does not plan to revisit the 12-month threshold for prisoner voting”.