Question 1

Ricky owns a book shop specialising in the sale of comic books. Some of these comic books, which are imported from Japan, are aimed at the ‘adult market’ and feature scenes of drug taking and extreme violence. Ricky is always very careful not to sell his ‘adult comics’ to children, but one day, while he is out of the shop, an assistant sells one of these comics to a 15 year old boy. The police search Ricky’s shop and seize what they consider to be offending material.

Ricky wishes to argue in his defence that his comics have literary merit and provide escapist fantasy for the adult clientele that read them.

Advise Ricky.

Answer guidance

The police could prosecute Ricky under the Obscene Publications Act 1959. Section 1 makes it an offence to publish an ‘obscene article’. This would certainly include a comic book and it was sold from his shop.

Section 1 attempts to define an article as obscene “if its effect is, taken as a whole, such as to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear it.” Quite what this means is not clear. Merely being shocking or disgusting is not enough (R v Secker and Warburg [1954] 2 All ER 683) and there is no need to prove that any person was actually depraved or corrupted by the obscene article. Perhaps the definition is deliberately vague, so as to reflect society’s views at the time. A jury or magistrate can decide what they consider obscene.

It does not have to be material of a sexual nature: violent material was successfully prosecuted in DPP v A & BC Chewing Gum [1968] 1 QB 519. The effect of the material on the likely audience has to be taken into account. Here it was a child, so a stricter test is likely to be employed as in DPP v A & BC Chewing Gum [1968] 1 QB 519. Ricky is unlikely to get away with the defence that the true audience, adults, might already be corrupted by reading similar material in the past and could not be corrupted any further: R v Anderson [1972] 1 QB 304 and DPP v Whyte [1972] AC 849. The court, which would be a jury or a magistrate, decide from their own experience what would corrupt an adult, but expert evidence may be allowed to help them decide the effect on children: DPP v A & BC Chewing Gum [1968] 1 QB 519.

Section 4 of the Act allows Ricky to deploy evidence of the ‘artistic merit’ of the comics as in R v Anderson [1972] 1 QB 304 and he may call expert witnesses. He is not, however, allowed to call evidence that obscene material can be helpful to its readership: DPP v Jordan [1977] AC 699 and A-G’s Reference (No. 3 of 1977) [1978] 3 All ER 1166.

If the Director of Public Prosecutions prosecutes Ricky, a jury will decide whether the comics are obscene and if so whether the artistic merit outweighs this.

The police could proceed in another way. They could use their power of search and seizure, under section 3 and ask a magistrate to order the destruction of the obscene material, thus avoiding the need for a jury trial.

It seems unlikely that the comics would be regarded as ‘extreme pornographic images’, under section 63 of the Criminal Justice and Immigration Act 2008 as comics are not likely to be ‘grossly offensive or disgusting’.

Although the law stated above remains unchanged, society has changed since those cases were heard. It is unlikely that the police would waste their time prosecuting Ricky and even less likely that the DPP would do so.

Question 2

Is there a right of privacy in English law?

Discuss.

Answer guidance

Historically, although reputation was protected by laws against defamation, privacy was not. Neither common law nor statute recognised a right of privacy.

The old Court of Chancery had however recognised that there could be a breach of confidence, where confidential information was revealed, as early as Prince Albert v Strange (1849) 1 Mc & G 25. The idea that confidential information could be protected was extended to the private sphere of marriage in cases like Argyll v Argyll [1967] Ch 302. A-G v Guardian (No. 2) [1990] 1 AC 109 was a landmark case, which recognised that there could be a variety of confidential relationships, some based on contract and others not. There was a legal obligation to keep information from those relationships secret. Here it was the obligation of a retired security operative, Peter Wright, to keep what he had learnt in his job secret. The House of Lords also developed the idea that the public interest had to be considered. Sometimes that would dictate that the information should remain confidential and sometimes it would require that it was revealed, say to publicise wrongdoing as in Woodward Hutchins [1971] 1 WLR 760. It might be that the previously confidential information was now so well known that there was no longer any point in trying to conceal it. That was the case in A-G v Guardian (No. 2) [1990] 1 AC 109. Newspapers could publish, but Wright was not relieved from a life-long obligation of secrecy.

The next major boost to the law was the enactment of the Human Rights Act 1998. The courts quickly adapted and began to balance the right of privacy in Article 8 against freedom of expression in Article 10 as early as A v B plc and Another [2003] QB 195. A separate right of privacy which does not depend upon the existence of a confidential relationship was recognised in Campbell v Mirror Group Newspapers [2004] 2 AC 457. Just because a person is a well-known public figure does not mean that everything they do or say can be revealed under the idea of freedom of expression. There must be a public interest in doing so, as even a public figure is entitled to a private life: HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 and Mosley v News Group Newspapers [2008] EWHC 1777. It is important to protect the privacy of children, even if they have a famous parent: Murray v Express Group Newspapers [2008] HRLR 33.

The law continues to develop particularly as celebrities try to protect their secrets. Mosley received damages because it was too late for an injunction as the information has already been revealed. It can be difficult to enforce injunctions as the internet can spread the information around the world rapidly: PJS v News Group Newspapers Ltd [2016] UKSC 26. Although the court thought it worthwhile in that case as not everyone uses the internet.

Whether a court order will be issued depends upon a lot of factors. Publication may be allowed if a person has been untruthful about their life and has been portraying a false public image: Campbell v Mirror Group Newspapers [2004] 2 AC 457 and Rio Ferdinand v Mirror Group Newspapers Ltd. [2011] EWHC 2454 (QB). The public might have a right to know about the private life of a politician, particularly where the ‘private’ information had already been published: AAA v Associated Newspapers Ltd. [2013] EWCA Civ 554. Yet where the BBC colluded with the police to film the search of the home of a celebrity suspect, that was an unacceptable intrusion into privacy: Richard v BBC [2018] EWHC 1837. Perhaps we can conclude that this relatively new law is still in a state of development.

Question 3

“In a democracy, people should have information about the workings of government. Without it, they cannot call their representatives to account and make informed use of their rights as citizens and electors.”

Discuss.

Answer guidance

The government possesses a number of controls over access to information. The Official Secrets Act 1911 was used to attempt to prevent a civil servant revealing information about a controversial military operation in R v Ponting [1985] Crim LR 318. This area of law was reformed by the Official Secrets Act 1989 to only protect types of information necessary to the working of government, namely security and intelligence, defence, international relations and criminal investigations. Nevertheless, the OSA could still be used to silence a whistle-blower in R v Shayler [2003] 1 AC 247.

Civil remedies, like breach of confidence, can also be used to restrain those who seeks to reveal government information as shown in the Spycatcher Cases such as A-G v Guardian (No. 2) [1990] 1 AC 109. The court may go beyond just attempting to enforce an injunction and order the defendant to hand over the profit that they have made from the breach of confidence to the claimant: A-G v Blake [2001] 1 AC 268.

Under the Public Records Acts 1958 and 2005, government documents are released after a period of 30 years. It was planned to reduce this to 20 years, but governments are often unwilling to release information, even about controversial incidents in the past. The government decides what is going to be released and some documents remain secret for much longer than 30 years or are never released.

The Freedom of Information Act 2000 was enacted to try to change this culture of secrecy. ‘Public authorities’ were encouraged to voluntarily release as much information as possible and any person can request information from a public authority. This looks good in theory, but there are a large number of categories where the information does not have to be revealed and other categories where it can be decided whether it is in the public interest for the information to be released or not. There are the obvious exemptions such as national security, defence and international relations, but also potentially very wide categories, such as any information obtained in confidence and any information relating to the formation of government policy. If a request for information is refused, there is an appeal to the Information Commissioner and then to the tribunal system and onward to the courts.

There have some notable successes, such as the disclosure of MPs’ expenses in Corporate Officer of the House of Commons v Information Commissioner [2009] 3 All ER 403 and the order to release Cabinet minutes in Cabinet Officer v Information Commissioner EA/2008/0024 and EA/2008/0029.

Unfortunately, under section 53 of the Act, the relevant Secretary of State has the power, in effect, to veto any court decision as long as the House of Commons agrees, which is what happened in the latter case. The courts have resisted this in R (Evans v Attorney-General [2015] UKSC 21, by stating that the Secretary of State only had the power to do this if he had “reasonable grounds”. He could not show that he had any evidence that had not been available to the courts, so to overrule them was not reasonable. The courts have found other ways of outflanking some of the exemptions in the Act. Although there was no obligation under the Freedom of Information Act 2000 for the Charity Commission to reveal the information requested, the Supreme Court stated that the Commission should consider doing so as there was a common law duty of openness and transparency in Kennedy v Charity Commission [2014] UKSC 20.

The Data Protection Act 2018 governs personal data held not just by the government, but by private organisations. The data holder must have clear and justifiable reasons for collecting the data and must ensure that it is accurate. A person may ask to see the data held about themselves and can ask, if necessary, to have it corrected. As with the Freedom of Information Act 2000, there are exemptions to this right, but the same Information Commissioner oversees this Act and there are also appeals to tribunal and the courts. In Catt v UK [2019] ECHR 76, a veteran peace protester had been placed on an extremist database. This could not be justified, as he had always been non-violent, and the court ruled that his name and details should be removed.

Maybe we can conclude that, with the help of the courts, people are gaining more access to accurate information about the workings of government.

Question 4

‘British law regards freedom of speech as a very good thing, so long as it does not cause trouble, at which point it can become expensive speech, visited with costly court actions, fines and damages, and occasionally imprisonment.’

Geoffrey Robertson

Discuss.

Answer guidance

The British are very proud of their right to free speech. In fact, it was always only a civil liberty. A person could write or say what they want, as long as they did not break the law. The Human Rights Act 1998 changed the law, by stating that there is now a right to free expression under Article 10(1), but there are many exceptions recognised under Article 10 (2). How much has really changed?

The Official Secrets Act 1911 has led to the jailing of political protesters, as in Chandler v DPP [1964] AC 763. Even under the reformed Official Secrets Act 1989 a whistle-blower was still jailed in R v Shayler [2003] 1 AC 247. This was in accordance with European Court of Human Rights decisions, that national security was more important.

In Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109, the House of Lords developed the law of breach of confidence to allow the government to silence those who wanted to reveal government information. Campbell v Mirror Group Newspapers [2004] 2 AC 457applied this law to develop a right of privacy. Injunctions are usually used, but damages can also be awarded Mosley v News Group Newspapers [2008] EWHC 1777. Enforcement can be worldwide PJS v News Group Newspapers Ltd [2016] UKSC 26. This type of court action is expensive, but can be used by the wealthy to stifle criticism. Even when the information has been so widely distributed that injunctions seem pointless, they may still be issued: PJS v News Group Newspapers Ltd [2016] UKSC 26.

Contempt of court is committed if something is published that raises a “substantial risk that the course of justice will be seriously impeded or prejudiced” according to the Contempt of Court Act 1981. This applies to both criminal and civil court cases and fines may follow and, in extreme cases, imprisonment. Newspapers have been ordered to hand over government documents: Secretary of State for Defence v Guardian [1984] Ch 156. Under section 10 of the Contempt of Court Act 1981, journalists have been ordered to reveal their sources, so that a court action could proceed (X Ltd v Morgan-Grampian [1991] AC 1) and to prevent further leaks of information from secure hospitals: Ashworth Secure Hospital v mirror Group Newspapers [2004] 4 All ER 1. Here, the European Court of Human Rights has differed from the UK courts and allowed more freedom of expression as shown in Goodwin v UK (1996) 2 EHRR 123, but where national security has been involved, their view has been much the same: Financial Times v UK [2010] 50 EHRR 46.

UK laws on obscenity appear quite strict, because under the Obscene Publications Act 1959, an obscene article is one that may “tend to deprave and corrupt”. This definition therefore goes beyond sexual material and can include many other things, such as drug-taking in R v Skirving [1985] QB 819. The European Court of Human Rights has declined to interfere in how individual countries define obscenity: Handysides v UK (1976) 1 EHRR 737.

Libel, which is writing or saying something that damages another’s reputation and is untrue, can also be expensive for a defendant. The UK courts called a halt to excessively large damages in John v MGN Ltd [1996] 2 Al ER 35. Under the influence of the European Court of Human Rights, more free expression has been allowed by the Defamation Act 2013. Now the defamatory article has to cause serious harm and there are additional defences of honest opinion and publication in the public interest.

In conclusion, it can be seen that there are many restrictions on free expression . An essay on this subject need to decide whether the restrictions are justified and proportionate.