H/T to Chris Bray for bringing to light Anthony McIntyre’s application for relief to the High Court in Belfast in the Belfast Project case. I haven’t written about the case in a while—those who want the background can refer to my archive of Belfast Project posts.

The application seeks judicial review of the UK authorities’ decision to make the MLAT request and seeks preliminary and permanent injunctive relief prohibiting the authorities from taking possession of the Belfast Project interviews. McIntryre has three basic legal theories.
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  • He claims that the request was “unlawful as it was made without taking in account [his] right to life under Article 2 of the European Convention on Human Rights 1 contrary to section 6 of the Human Rights Act 1998.” 2
  • He claims that the request was “unlawful as it was made without taking into account [McIntyre’s] right to freedom of expression under Article 10 of the ECHR, 3 including but not limited to the prevention of the disclosure of information received in confidence, contrary to section 6 of the Human Rights Act 1988.”
  • He claims that the Home Secretary failed to comply with the MLAT in various respects. For example, McIntyre points to Article 1 § 1bis, which provides that the treaty cannot be used in cases where the government does not anticipate that a prosecution will occur. With less apparent reason, he points to various provisions that permit the Requested State—here, the United States—to refuse to comply with a request on various grounds, and to the provision on consultation between the parties, which, for reasons I have described elsewhere, I think inapplicable here.

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I have long thought that Moloney & McIntryre might do well to do some lobbying in London. Suppose, as I think likely, that the US is obligated by treaty to execute the UK’s request for judicial assistance. The UK was not obligated to make the request, and could be freer to withdraw the request than the US is to deny it. I think an action for judicial review of the request in the UK could make good sense for similar reasons. That said, I can’t really comment on the procedural aspects of the new UK case or the merits of McIntyre’s position under the ECHR. Nor can I say much about how the UK court would construe the MLAT, though it does seem to me that the MLAT’s express provision indicating that it creates no private right of action could be a bar to the kind of judicial review McIntyre is seeking.

Why have these proceedings been brought only now? I don’t know whether the same analysis applies in the UK that would apply here, but there may be an argument that McIntyre is guilty of laches, “unreasonably delay … in pursuing a right or claim—almost always an equitable one—in a way that prejudices the party against whom relief is sought.” 4 On the one hand, perhaps the UK authorities have not really been prejudiced. On the other hand, McIntyre’s affidavit, which he filed in support of his application, seems self-conscious on this point. He says that he had”only relatively recently been advised” of his potential claims in Northern Ireland, and that there was some delay from September 2011 and June 2012 while his application for legal aid was pending.

I understand there is to be a hearing today on McIntyre’s request for preliminary injunctive relief in Belfast.

Notes:

  1. Article 2 provides: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
  2. Section 6 of the Act provides: “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
  3. Article 10 provides: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” But it also provides that the right of free expression may be subject to restrictions that are “prescribed by law” and “necessary in a democractic society, in the interests of national security, territorial integrity or public safety, [and] for the prevention of disorder or crime.”
  4. Black’s Law Dictionary 879 (7th ed. 1999).