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By Ted Folkman of Rubin and Rudman LLP

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A New Front in the Belfast Project Case

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 Rights1 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.

  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).

Ted Folkman

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3 responses to “A New Front in the Belfast Project Case”

  1. Ted Folkman

    I am told the hearing did not go forward today, and that it will likely not happen until September.

    Reply
  2. P Smith

    There is a time limit for bringing applications for judicial review, which I suspect is three months and is to be found in Order 53 rule 4 of the Rules of the Court of Judicature (Northern Ireland) 1980, which I cannot find online (either under that title, or the original title of the Rules of the Supreme Court (Northern Ireland) 1980). I base this on the observation that the Northern Irish rules are modeled on the former English Rules of the Supreme Court (RSC).

    Order 53 was one of the provisions of the RSC which remained in effect after the introduction of the CPR, and is thus to be found in Schedule 1 to the Civil Procedure Rules 1998 (http://www.legislation.gov.uk/uksi/1998/3132/schedule/1/made). It was subsequently revoked in 2000 when Part 54 (Judicial Review) was added to the CPR. At that time the relevant rule (Order 53 rule 4(1)) read:

    “An application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

    CPR 54.5(1) now makes identical provision, save for the reference to extending time; that presumably was considered redundant in view of the general power to extend time conferred by CPR 3.1(2)(a). I have no reason to believe that a different limit applies in Northern Ireland. (There is a slideshow at http://www.docstoc.com/docs/92763006/JUDICIAL-REVIEW-%28PowerPoint%29 which appears to confirm this – see slides 19 and 20.)

    The provisions of the MLAT are largely irrelevant. The treaty, not having been given effect by primary or secondary legislation, does not form part of the law of any part of the United Kingdom, and the court is therefore not obliged to have regard to article 1(3) (certainly not in view of section 7 of the Human Rights Act, which is part of the law of Northern Ireland) and nor can the court review the Home Secretary’s compliance with the provisions of the treaty (as distinct from the decision to make a request in the first place, whose compatibility with the Convention is reviewable under section 7).

    As to the merits, I think the Article 10 claim is misconceived. “Prevention of the disclosure of information received in confidence” is one of the grounds on which restrictions on the exercise of the Article 10 right may be justified. But Article 10 is not itself the source of a right to prevent such disclosure (or a right to damages should information be disclosed). What Article 10 does do is preserve any cause of action arising under national law in the event of disclosure of confidential information. So far as I can tell there is simply no breach of Article 10 here. (Nor, as far as I can tell, does McIntyre have any cause of action under Northern Ireland law; and if he does, PSNI most probably have a defence to it on public policy grounds.)

    There might be merit in the Article 2 claim in view of Osman v UK (1998) 29 EHRR 245 (http://www.bailii.org/eu/cases/ECHR/1998/101.html) (paras 115-116), but arguably the damage has already been done and disclosure of the remaining interviews isn’t going to make McIntyre’s position worse. In any event, the PSNI does have some discretion as to how it discharges its Article 2 obligations, and it should be able to do so in a fashion which does not preclude disclosure of the interviews. Injunctive relief is probably not appropriate here.

    Reply
    1. Ted Folkman

      Thanks for this useful comment! I want to make sure I understand a couple of your points. You write:

      “The provisions of the MLAT are largely irrelevant. The treaty, not having been given effect by primary or secondary legislation, does not form part of the law of any part of the United Kingdom, and the court is therefore not obliged to have regard to article 1(3) (certainly not in view of section 7 of the Human Rights Act, which is part of the law of Northern Ireland) …”

      I take this to mean, in US parlance, that under UK law the MLAT is not self-executing. Do I have that right?

      You continue: “… and nor can the court review the Home Secretary’s compliance with the provisions of the treaty (as distinct from the decision to make a request in the first place, whose compatibility with the Convention is reviewable under section 7).”

      I take this to mean that because the Home Secretary’s duties under the treaty are non-ministerial, there is no judicial review. (At least, that’s what I think the situation is in the United States, and so I am assuming you are making a similar point for the UK). Have I got it?

      Reply

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