Notes from a Small Island/DomainPulp!

Some four months after a dramatic police raid on a respected family Doctor’s surgery in Alderney, more questions remain than have been answered.

At the end of last month the police announced that their investigation has cleared Dr Lyons of any suspicion of any criminal offence.

On July 31st, the Medical Practitioners Tribunal lifted their interim suspension of Dr Lyons’ registration as a doctor.

So all is now back to normal, right? Not quite.

The right to privacy and personal property are key principles of the Bailiwick’s justice system, as well as that of the British Isles and most of Europe.

The Bailiff (the Islands’ most senior judge) or other appropriate judicial officer may issue a search warrant granting powers of entry, search and seizure. This can only be granted for the purpose of searching for stolen property, illegal drugs, firearms and evidence of serious offences.

It is clear from the media that the warrant upon Dr Lyons’  surgery and his home fell into the latter category, suspicion of
serious offences. It is also clear to me that, at least on the day of the ‘SWAT’ style raid, the police suspected Dr Lyons having committed the most serious offence that any defendant can ever be called to account for in front of a Court.  And not once, but on up to four occasions.

Since the Police have subsequently stated they have found no evidence of any criminal wrongdoing, one has to ask, on what evidence did the learned Bailiff (or other judicial authority) grant the police the authority to enter and search?  Our laws are supposed to protect us from unreasonable searches and seizures by the authorities;  furthermore, the Channel Islands are only part of the British Isles to have had direct experience of such things within living memory, so you would expect the judiciary to require the executive to show cause that the evidence being sought was likely to be found before rubber-stamping search warrants.

When the police have information that appears to justify an application to conduct a search, the officer concerned must take  reasonable steps to check the information is accurate, recent and not provided maliciously or irresponsibly.  Under the Police Powers and Criminal Evidence Law, this is the responsibility of an officer of the rank of Inspector or above.

Amongst other things, the officer must the specify the  object of the search, including, when the purpose of the proposed search is to find evidence of an alleged offence, an indication of how the evidence relates to the investigation. Information supporting a search warrant application should be  as specific as possible, particularly in relation to the articles being sought.

Again from newspaper reports: the object of the search was to seize medical records of particular interest.

Yet it was also reported that the police seized entire computer disks, containing medical and/or medical related records on all the surgery’s patients, including myself and my relatives who are also Dr Lyons’ patients.

This is disproportionate and, it appears, a clear breach of my own (and that of all other patients of the Eagle Medical Practice) legal right to private and family life;  this infringement is even more egregious when you consider that PPACE gives officers powers to require information stored in electronic form to be produced in a form which can be taken away and in which it is visible and legible:  so they could just required, and taken away only the records they were interested in.

Searches must be made at a reasonable hour, unless this might frustrate the purpose of the search. And searches must be conducted with due consideration, and with no more disturbance than necessary:  you might take the view that this means not only during daylight hours, but also without barging in causing unnecessary distress and inconvenience to uninvolved third parties such as patients.

Dr Lyons has not only now been cleared by the police investigation of involvement in any criminality, but the complaints from the States of Guernsey to the General Medical Council have also been fully considered and rejected by the Medical Practitioners Tribunal service, who, on July 31st restored him to the register with no conditions whatsoever, thereby exonerating him of any suggestion of professional incapacity.

Despite this, the senior official in charge of the States of Guernsey Health and Social Security department (HSSD) recently made a vigorous defence of the States’ heavy-handed actions, saying that they would do the same again, because “all allegations have to be referred on”.

With all appropriate respect to the professional expertise of the official concerned , that is just not so, in a democratic society. Both the executive and the judiciary have a responsibility to consider allegations carefully and seriously.

For the States irresponsibly to report someone to the police, and to make complaint to their professional licensing body, making allegations of serious offences on what (it now appears from the conclusions of the police and the GMC tribunal) was little or no evidence, is in my mind, equally as culpable as ignoring concerns would be.

The States of Alderney and Neil Harvey MSA are to be unreservedly and wholly commended for their strong stance in calling for a public inquiry.

The response of Guernsey’s Chief Minister, Deputy Le Tocq to this call is, initially, encouraging.

But such an inquiry has to be a fully independent, judge led inquiry

Any inquiry that is carried out under the authority of the States of Guernsey itself, or appointed by them will fail the test of apparent bias, since it was the Guernsey Government itself (i.e the Health and Social Security Department) that was the instigator of the whole sorry mess.

That any tribunal must now ensure the absence of apparent bias is an extremely important constitutional principle on the right to fair hearing that  developed in Guernsey at the beginning of the century in McGonnell’s Case, and is now widely accepted throughout the rest of Europe.

Fortunately, there are  legal and legislative mechanisms that can deal with this, even if they are not often required to be used.

I am sure that the States of Alderney, and the Chief Minister will agree with me that the only way to prevent further damage to the reputation of Guernsey is to grasp the nettle and make sure this is dealt with in a fair, open and transparent matter in order to avoid any such potential criticisms, or allegations of ‘cover up’. And that can only be done by an independent, judge-led inquiry.

I very much look forward to learning whether the proposed inquiry will meet this standard.

At the beginning of August I wrote about the long-running saga of terrorists’ victims who are pursuing ‘state sponsors of terrorism’ (specifically, Iran, Syria, and North Korea) through the US courts for damages for the injuries they have suffered.

Several years along that path they managed to obtain Writs of Attachment in the Federal court district in Washington (D.C.) courts ordering that the ccTLDs of those respective countries be seized in part-payment of the damages they are owed.

ICANN, fairly predictably, became involved at this point. It went to Court in DC asking that the Writs be quashed. It appeared to based its argument on a number of points, starting with the theory that TLDs are different from other domain names, and are not property. See my earlier article..

Federal courts apply the law of the State in which they sit, on matters such as asset seizure.

The Court ruled on the 10th November and the full judgment has just become available.

ICANN has been successful in quashing the Writs attaching the TLDs.

However, as any legal observer will tell you, the actual outcome of a case is not that important (except to the winners and losers!). What is important is the legal reasoning; the rationale and the dicta.

In other words, on what legal principles is a judgment made. Does it create new law, for example, which can bind the decisions of future courts (‘binding precedent’). And are there any other legal principles discussed: these can form what are called ‘persuasive precedent’ and/or obiter dicta).

Well, in this case, the outcome seems to turn on fact, rather than any estoteric legal principle.

The Court appears to have found as fact that the domain names that had prospectively been seized by the Plaintiffs (Claimants) had the nature of a contractual right.

What this means for the Plaintiffs is that under the statute law of DC, rights arising under a contract cannot be seized as part of a judgment. This technicality means that the Court did not have to rule whether ccTLDs are property or not: it just had to be satisfied that, if it were property, it was not the sort of property that the relevant law (statute) allows to be seized by a creditor (in D.C.) , which ICANN has fairly easily been able to show.

Other commentators (e.g. the DomainPulse people) have written the court has ruled that ccTLDs are not property. This turns out to be incorrect.

[DomainPulse updated and revised their coverage since this was written and they have now corrected this.]

Interestingly, the Court chose explicitly to say in the judgment that it has not decided that ccTLDs were not property.

On page 8 of the judgment, in footnote 2, the Court says: “The Court notes that judicial decisions have found domain names to be a form of intangible property. See e.g. Kremen v Cohen 337 F.3d 102,1030 (9th Cir 2002). But the conclusion that ccTLDs may not be attached in satisfaction of a judgement under DC law does not mean that they cannot be property.”

This appears to give us a clue that the Court might have considered that ccTLDs are no different to gTLDs and no different to domain names such as SEX.COM (which was the property at issue in Kremen v Cohen).

It simply found that ccTLDs were, like other domain names, in the nature of a contractual right, which under DC law cannot be seized by creditors.

As this was sufficient to dispose of the current application, no binding ruling has been issued, so another court could decide either way. But from the above quote, it’s fairly clear that the court clearly seems to think that Kremen v Cohen would have been relevant if it had had to decide whether TLDs are property.

ICANN is embroiled in an ongoing civil court case between victims of terrorism and the government’s of three countries, in the case of Rubin & ors v Iran and other actionswhich are in federal court in the District of Columbia. (Michele Neylon reporting).

Essentially the form of the current Claim is that ICANN are seeking to quash a court order that requires them to transfer the management of three Top Level Domain names to the successful Claimants in a number of separate actions against the Governments of Iran, Syria and North Korea.

ICANN’s full Application to Quash has been published here.

When analysis ICANN’s argument it appears to be that

(a) domain names, at the top level which consist of two letters only (i.e country-code domain names, or “ccTLDs) cannot be regarded as property;

(b) that even they are property they aren’t the sort of property that can be seized in law;

(c) that even if they are seizable property, they aren’t owned by the countries concerned;

(d) even if they are owned by the countries concerned, they aren’t inside the court’s jurisdiction;

(e) even if they are in the jurisdiction, a US Federal law giving immunity to foreign governments prohibits the seizure;

(f) even if that law doesn’t prohibit seizure, ICANN acting along cannot transfer ownership

(g) forced transfer would destroy the inherent value in the property.

The property question is particularly interesting and relevant, since many ccTLDs have invested major resources in developing their registries, and at least at first blush, ICANN appears to be saying they have no rights whatsoever to the delegation.

Even to raise such an argument appears that it might destabilise the smooth functioning of the Internet’s unique naming system . . .

Dear Messrs Hague and Grayling

The recent developments in Brunei where the Sultan is introducing a harsh Islamic judicial code have been widely reported, by the BBC among others, and have produced protests world-wide.

It is little known by the general public that the highest Court in the Brunei court system actually sits in London, and is part of the UK judiciary.

It is noteworthy that, originating in Britain’s Imperial past, the jurisdiction of the Judicial Committee of the Privy Council to hear appeals from Brunei has been continuous since then. Brunei-originating cases, once addressed to Her Majesty-in-Council, are now heard by the Privy Council in the name of the Sultan of Brunei.

I feel that the UK must respect European international norms regarding fundamental rights.

The death penalty is inappropriate in all circumstances. To prescribe a penalty of death simply for being gay or for adultery is, in my opinion, (and, I am sure, in the minds of the overwhelming majority of British people) disproportionate in the ultimate extreme.

It  seem very strange for the Privy Council to continue to hear cases from a country that has now developed in a manner that is so far removed from our own 21st Century standards of fair treatment.

I think this needs to change. I therefore call upon the British Government to take action, and to abrogate the agreement whereby a British Court continues its role the highest court in the land of Brunei.

Nigel Roberts LLB, FBCS, 6th May 2014
about.me/nigel.roberts

For further information: telephone Nigel Roberts on 020 7100 4319

Data privacy and data protection is something that — on paper — European countries take seriously.

Google has found itself in hot water from time to time. There’s a widely publicised complaint to the Irish Data Protection Commissioner about Facebook.

In the wake of the Snowden revelations, it seems everyone is talking about who knows what about whom!

European Data Protection law also provides for something called Data Subject Access. This may differ slightly from country to country. But it essentially means that you can write to someone who is storing and/or processing personal data about you, and they must send you everything they hold on you in a form that is easily understandable.

In the UK it is implemented by Section 7 of the Data Protection Act.

A small fee is allowed to be charged. It is currently £10 in the UK

The controller must

This right is not absolute, of course. There are a number of exceptions (known as exemptions).

It’s very obvious that some data should not be disclosed, particularly where it is about several people, and disclosing it to you will disclose information about someone else.
Medical confidentiality has an impact. So does national security.

Specifically data held for the purposes o the prevention or detection of crime; the capture or prosecution of offenders; and the assessment or collection of tax or duty is exempt from Subject Access.

Data is also exempt from Subject Access for reasons that involve national security or the armed forces.

So on the face of it, GCHQ, MI5, MI6 and “the port office” would appear to be able to do what they like, and store information about you, whether it was obtained by them directly, or was given to them by the NSA.

However, I submit that the true construction carries with it an important implied qualifier: the word “lawfully”.

The right to private and family life guarantee by the constitutions of most European states (with the exception of the UK) and throughout Europe by the EU Charter and the Convention on Rights and Fundamental Freedoms permits privacy to be infringed by the State in certain circumstances.

They are that the infringement is

• necessary in a democratic society
• in accordance with law
• proportionate to the aim to be achieved.

The joint test of necessity, lawfulness and proportionality.

Even if something is necessary, it has to be lawful.

Even if necessary and lawful, it has to be proportionate. (No sledghammers for cracking nuts.)

So, if, theoretically, the State collected all sorts of data about you unlawfully, but that data was sitting there in Government owned computers, I would suggest the national security exemption would not apply, and therefore that data is susceptible to s.7 Subject Access.

Wouldn’t it be something if the courts agreed?