The last weekly roundup of the Hilary Term includes data protection, chemical weapons, criminal lawyers up in arms over justice and legal aid, and some fairly fishy business with Brexit.

Data Protection

Cambridge Analytica and other Facebook friends

The Information Commissioner’s Office after a somewhat agonising delay was granted a warrant on Friday 23 March 2018 to enter the premises of Cambridge Analytica, following the company’s refusal of the ICO’s Demand for Access to records and data.

The background to all this was a series of revelations by whistleblowers and investigations by, among others, Carol Cadwalladr in the Observer and Channel 4 News. The key allegation, according to Cadwalladr’s Observer report on 17 March (Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach):

“The data analytics firm that worked with Donald Trump’s election team and the winning Brexit campaign harvested millions of Facebook profiles of US voters, in one of the tech giant’s biggest ever data breaches, and used them to build a powerful software program to predict and influence choices at the ballot box.”

The data was said to have been harvested via a survey app developed by Aleksandr Kogan, an academic at Cambridge who then sold it to Cambridge Analytica. It is also suggested that Facebook, having become aware of the issue, failed to address it properly and that Cambridge Analytica wrongly denied to a committee of MPs that they had used or acquired Facebook data.

On 17 May 2017 the Information Commissioner, Elizabeth Denham, opened a formal investigation into the use of data analytics for political purposes. On 17 March 2018 she said

“We are investigating the circumstances in which Facebook data may have been illegally acquired and used.

It’s part of our ongoing investigation into the use of data analytics for political purposes which was launched to consider how political parties and campaigns, data analytics companies and social media platforms in the UK are using and analysing people’s personal information to micro target voters.”

Facebook had initially attempted to perform its own investigation of Cambridge Analytica but it stood down its search once it became clear that the ICO intended to seek a warrant. That was on Monday 19 March. There was then a somewhat alarming delay (what would happen to the data in the meantime?) while a suitable High Court judge was found to hear the application. The job eventually landed on the desk (or bench) of His Honour Judge Leonard QC, sitting as a judge of Woolwich Crown Court in Court 5 of the Royal Courts of Justice. It was live-tweeted by Gareth Corfield of The Register. The hearing seems to have been adjourned part heard, had to be moved to another court when the recording equipment was found not to be working, and only ended with the issue of a warrant at around 7pm on Friday evening. Reasons will be given later.

An ICO spokesperson said: “We will now need to assess and consider the evidence before deciding the next steps and coming to any conclusions.”

Further reading / updates:

Gareth Corfield, The Register: UK watchdog finally gets search warrant for Cambridge Analytica’s totally not empty offices

ICO statement: investigation into data analytics for political purposes

The Guardian, The Cambridge Analytica Files

New York Times, How Trump Consultants Exploited the Facebook Data of Millions

Channel 4 News: Exposed: Undercover secrets of Trump’s data firm

HuffPost, Explained: What Is Cambridge Analytica – And What Is It Accused Of Doing?

Privacy International, Cambridge Analytica Explained: Data and Elections (Note the date – this was written about a year ago.)

Chemical Weapons

Nerve agent probe draws blood

Following on from our report last week into the mysterious poisoning of former Russian spy Sergei Skripal and his daughter Yulia, in Salisbury earlier this month, the Court of Protection has now given a judgment granting an application by the Home Office for permission to take blood samples from them to enable independent verification by the Organisation for the Prohibition of Chemical Weapons (OPCW) of the initial analysis of the nerve agent by experts at the Defence, Science and Technology laboratory at Porton Down.

The case took the form of an application by the Home Secretary for personal welfare orders in respect of Skripal and his daughter under the Mental Capacity Act 2005, seeking declarations that it would be lawful for the NHS Trust which currently has care of them to take a blood sample for the OPCW to test, and to disclose relevant medical records to OPCW. Neither of the Skripals, both under heavy sedation, was in a position themselves to give such consent.

Of course, they had already been subject to medical treatment, as emergency patients, which does not require prior legal approval. But the additional procedures required by the OPCW experts were not part of their essential treatment, and in any event had a wider legal/political purpose, and hence required the approval of the court.

In considering whether he should (as he ultimately, and fairly predictably, did) grant the orders sought, Mr Justice Williams had to consider, under s 4(6) of the 2005 Act, the Skripals’ ‘past and present wishes and feelings’, their ‘beliefs and values’ and ‘other factors’. In the absence of much evidence about this, he proceeded on the assumption that they were ‘reasonable citizens’ and said, at para 31:

“Most reasonable citizens in my experience have a quite acute sense of justice and injustice. Most want to secure the best information about what has happened when a serious crime is alleged to have been committed. I accept that such a person would believe in the rule of law; that justice requires that crime or serious allegations of crime are thoroughly investigated; that where possible answers are found as to who, how and why a crime was perpetrated, that where possible truth is spoken to power; that no-one whether an individual or a State is above or beyond the reach of the law and that in these turbulent times what can be done to support the effective operation of international conventions is done.”

As well as providing a non-clinical justification for the giving of consent by the court, this passage, with its references to the rule of law, along with the very fact of the court being involved in the decision in the first place, offers a very pointed and emphatic contrast to the alleged conduct of a foreign state or individual seeking to effect an extra-judicial killing on British soil.

Read the judgment: Secretary of State for the Home Department v Skripal [2018] EWCOP 6

For a fuller case comment, see Transparency Project, Why the Court of Protection gave permission for blood samples to be taken in Skripal poisoning case

See also: BBC, Spy poisoning: Russian diplomats expelled across US and Europe

 

Legal Aid

#Charter4Justice

The launch of the Charter For Justice by the London Criminal Courts Solicitors’ Association (LCCSA) took place at the Law Society on 26 March 2018, with a panel of speakers chaired by ex LCCSA President Greg Foxsmith and including

  • CBA chair Angela Rafferty QC on funding issues and access to justice
  • Laura Jane (Howard League) on the Prison and probation crisis
  • Raj Chada on tackling discrimination and prejudice at the police stations and in court
  • Jerry Hayes on disclosure; and
  • Penelope Gibbs (Transform Justice) on Open Justice.

The event was live-tweeted under the hashtag #Charter4Justice

The Charter has been drawn up to encapsulate and express key principles that practitioners can unite behind and campaign for in relation to the criminal justice system, whose current failing have received a lot of publicity recently.

 

Direct action threat

Meanwhile, the Criminal Bar Association (CBA) which Angela Rafferty chairs is expecting ‘overwhelming support’ for proposed direction action against what amount to further cuts in the criminal legal aid budget. According to the Law Society Gazette,

“Legal aid solicitors are understood to be working with the CBA to determine whether they too should take action, which could include refusing publicly funded new work.

The protest is against the Ministry of Justice’s (MoJ) proposal to reform the Advocates Graduated Fee Scheme (AGFS), which determines how legal aid advocates are remunerated.”

Some barristers are already planning to refuse publicly funded work. Responding to the inadequacies of the revised Advocates Graduated Fee Scheme (AGFS) (which we reported on last week), Chambers at 5 Paper Buildings (5PB) have announced that

“Members of chambers have considered the new Advocates’ Graduated Fee Scheme which it is currently proposed to be introduced on 1st April 2018. We believe that the proposals jeopardise the continued existence of the publicly funded criminal bar. We support the Criminal Bar Association’s call to the Ministry of Justice not to implement these proposals, and from 1st April 2018 will not be accepting instructions covered by a representation order which falls within the proposed scheme.”

See also: Statement from the Chair of the Bar Council on AGFS

Incidentally, if the English Bar does go on strike, it won’t be the only one doing so. The French Bar has also been out on the streets protesting in defence of fundamental freedoms and the rights of litigants.

 

Brexit

Fishy business

Two examples of fishy business in Brexitland last week. The first and most obvious (or least metaphorical) was the flinging of dead fish from a flotilla of one in the Thames, by prominent Leavers, ostensibly to highlight the unfairness of the EU’s Fisheries Policy. According to the Express,

“The protest descended into farce when the trawler was barred from docking at Westminster over licensing. Organisers, Fishing for Leave, said the fish dumping was symbolic of the fact catches are often discarded under EU quota rules.”

The newspaper helpfully explained why some opponents of the stunt, including environmental campaigners and a pro-Brexit Tory anger, thought it might even be illegal:

“Throwing just one crate of dead fish overboard is not thought to constitute pollution, although any more could lead to a fine or even jail under The Environmental Permitting (England and Wales) Regulations 2010.

(Having looked at those regulations, we’re not quite sure which bit they’re referring to, but no doubt they took advice from someone who knew what they were talking about.)

The fish flung from the vessel were apparently haddock (a saltwater fish, so alien to the freshwater Thames) but in view of the existing association of anti-Europeans with kippers, this fishy protest did rather invite jokey comparisons with slippery customers and the like.

See also: Reuters, Brexiteers dump fish in Thames to protest at EU deal

The other example of fishy business is altogether darker.

It is yet another allegation about election expenses overspending, this time by the Leave campaign. And it involves allegations about a data analytics company. Once again, the matter has been reported on by Carol Cadwalladr and others in the Guardian:

“Members of the official Brexit campaign during the EU referendum may have committed criminal offences relating to overspending and collusion, according to lawyers advising whistleblowers who worked inside the organisation. […]

Vote Leave formally declared it had spent £6.77m during the campaign in the summer of 2016, well below the £7m limit. That figure, however, excluded £625,000 donated by Vote Leave to BeLeave which was spent on the same digital marketing company, AggregateIQ, that Vote Leave used.”

It’s also suggested that AggregateIQ had links with Cambridge Analytica. The money spent on its work was allegedly all part of the same campaign as Vote Leave. The matter of Vote Leave’s alleged overspending is now being investigated by the Electoral Commission (again).

See also: Guardian, Revealed: Brexit insider claims Vote Leave team may have breached spending limits

 

Inquiries

Undercover policing: chair urged to quit

Sir John Mitting, the former High Court judge now chairing the Undercover Policing Inquiry, has been invited to step down from the role he assumed following the death of the original chair, Sir Christopher  Pitchford, or to appoint a full panel for the rest of the hearings.

At least 60 campaigners and their legal team have walked out of what is often referred to as the SpyCops inquiry in support of the demand, after leading counsel, Phillippa Kaufmann QC complained about the Mitting’s conduct of the inquiry. According to the BBC,

She said: “If you don’t get this right now, then so much of what has gone wrong with undercover operations will remain secret.

“I’m sorry to say this, we have the usual white middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon.”

Ms Kaufmann claimed that the reasoning for not releasing the names of certain police officers was “scant and largely uninformative” and said her clients asked chairman Sir John Mitting to recuse himself or to install a new panel.

The Inquiry’s purpose is to investigate and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968. Though being conducted in an open court in the Royal Courts of Justice it has been subject to complaints about lack of disclosure and want of transparency after many of the officers giving evidence were allowed to remain anonymous.

 

Grenfell Tower: chair supports openness

Somewhat in contrast to the lack of transparency alleged against the SpyCops Inquiry, the chair of the Grenfell Tower Inquiry, Sir Martin Moore-Bick may have confounded those critics who assumed he was a partisan stuffed shirt by coming out with a ringing defence of transparency and open justice.

The principles of open justice which operate in legal proceedings also apply to a public inquiry established to investigate matters of public concern, he said on 20 March when giving his reasons for granting a limited number of requests for core participants to remain anonymous during the inquiry. The vast majority of such requests were, however, rejected.

In a published ruling, Sir Martin cited the classic case of Scott v Scott [1913] AC 417 in which the House of Lords established the principle that open justice should only be restricted when it was strictly necessary to do so. He went on, at para 4:

“The importance of open justice as fundamental to the maintenance of the rule of law has been reiterated in many recent cases. In Khuja v Times Newspapers Ltd [2017] UKSC 49; [2017] 3 WLR 351 Lord Sumption expressed the view that its significance had if anything increased in an age which attaches growing importance to the public accountability of public officers and institutions and to the availability of information about the performance of their functions” (paragraph 13).

He added, at para 6:

“The principles of open justice apply with their full rigour to legal proceedings in the ordinary sense, but in my view they are also applicable to a public inquiry set up under the Inquiries Act 2005 to investigate matters of public concern. That is particularly so where there are reasons for scrutinising in some detail the conduct of public officials and others whose actions may have contributed to a substantial loss of life.”

Given the amount of stick he got when he was first appointed chair of the inquiry (see Weekly Notes – 4 December 2017 ) , he appears to have given his critics some reason at least for rethinking their knee-jerk prejudice. Whatever the cause of Sir John Mitting’s failure to win over the support of the complainants in the SpyCops Inquiry, Sir Martin Moore-Bick looks like having a good chance of avoiding the same trap.

 

In related news, the Home Office has published revised Guidance on handling extensions of leave from relatives of those directly affected by the Grenfell fire  for its staff on

  • how to consider with requests for extensions of stay for up to 6-months under the Grenfell relatives’ policy
  • what other options are available to relatives of those directly affected by the Grenfell fire who aren’t eligible for consideration under the Grenfell relatives’policy

 

In brief

Policing and Crime

Justice update: written statement (HCWS584) to Parliament by the Lord Chancellor and Secretary of State for Justice, David Gauke, on 26 March 2018 on a recent Memorandum of Understanding with London council and the Mayor’s Office for Policing and Crime (MOPAC). The MOU covers

  • Victims and witnesses
  • Reducing reoffending
  • A new approach to managing vulnerable cohorts
  • Financial devolution

Law Term dates

The Hilary Term ends on 28 March. The Easter term begins on 10 April and ends on 25 May.

For other dates, see Judiciary website.

Legal history

Squire Law Library, University of Cambridge: Conversations with Sir John Hamilton Baker QC: Aspects of Resolving the Legal History of the Common Law, by Lesley Dingle. Highlighting some aspects of Professor Baker’s illustrious career. Download available at SSRN: https://ssrn.com/abstract=3136466

Passport to procurement

David Allen Green in his FT column, Blue passports and public procurement [£] explains why Brexiters are wrong to complain about the decision to award a contract to produce the ‘new’ blue passports to a French company. The rules of public procurement which apply within the EU would continue to be applied after the UK leaves, either under any UK-EU trade deal or under WTO rules. If the UK wants to be ‘open for business’ as a ‘great trading nation’ it will need to abide by them.

Fake news

The EU Commission published the Final report of the High Level Expert Group (HLEG) on Fake News and Online Disinformation, entitled A multi-dimensional approachto disinformation (12 March 2018). You can download a PDF here.

“Disinformation as defined in this Report includes all forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit.

The HLEG recommends a multi-dimensional response resting on Five Pillars designed to:

  1. enhance transparencyof online news, involving an adequate and privacy-compliant sharing of data about the systems that enable their circulation online;
  2. promote  media and information literacyto counter disinformation and help users navigate the digital media environment;
  3. develop tools for empowering users and journaliststo tackle disinformation and foster a positive engagement with fast-evolving information technologies;
  4. safeguard the diversity and sustainability of the European news media ecosystem, and
  5. promotecontinued research on the impact of disinformation in Europe to evaluate the measures taken by different actors and constantly adjust the necessary responses.

 

Dates and Deadlines

ICLR pupillage award

 

That’s it for now. Enjoy the break. We will resume in the first full week of the Easter Term.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.