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If anyone thinks the UK will be at the mercy of the 27 remaining EU Member States in negotiations over and in reaching a final agreement over the UK’s exit from the EU then they may have to rethink.  It is possible that long and well-established principles of European Union law may apply to any illegal actions.  And if the law were to be broken and the final agreement is unlawful then it is conceivable that EU citizens in the UK – which means individuals and companies – may be able to sue the EU after the UK’s exit for losses and damage suffered, even if they have then ceased to be EU citizens.

Individuals and companies have legally enforceable rights to detailed information about information held by the EU which might include at least some information about the negotiations as they take place.  And can negotiations by anonymous EU officials take place in private in what used to be called “smoke filled rooms” [a thing of the past under EU law] or must they be in public with all information published?  See also:

Brexit – Your Personal Right to Have Copies of the Brexit Negotiations Documents

It is conceivable that negotiations to reach a final agreement must seek to achieve the best outcome for the functioning of the Single European Market.  Hence, political claims could have some substance that it is possible an exit from the EU may not be one which excludes the UK from it nor one which imposes punitive trade tariffs and other obstacles to trade.

This blog post is not a detailed analysis of EU law.  It is solely intended to introduce you to some principles of EU law which might apply to control and restrict the conduct of the exit negotiations and the legality of any final agreement.  The intention is to equip you with some basic principles for further consideration of whether they might be applied to benefit the UK and its currently resident EU citizens in the lead up to and after an exit.  How and the extent to which such principles might control and restrict the conduct of the remaining 27 Member States, the EU Commission and Council will no doubt be subject to consideration by others in the coming months and years of the exit process and beyond.

The European Commission produced a useful document summarising some of the relevant over-riding legal provisions restricting what is lawful action by the EU and its institutions in the field of EU Administrative Law: 

The General Principles of EU Administrative Procedural Law In-depth Analysis Directorate General for Internal Policies Policy Department C: Citizens’ Rights and Constitutional Affairs Legal Affairs

Here are some examples to give you an idea of some provisions of immediate interest:

public authorities shall act and perform their duties within a reasonable time

“Law: Article 5(4) TEU ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.”

“neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law,”

And must the negotiations be conducted in public?  How are the principles of transparency and of participatory democracy to be respected:

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability.  They require that in order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

That might be taken together with the right of access to documents.  This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.  See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

Summary of Principles of EU Administrative Law

The principle of the rule of law:

Article 2 TEU

Applies to administrative actions.

Any action of the Union has to be based on the treaties according to the principle of conferral [Case 46/87 Hoechst v Commission [1989] ECR 2859, summary point 3].

The rule of law requires that EU institutions, bodies, offices and agencies shall act in accordance with the law

[The hierarchy of legal norms must be recognized and respected in that no act may violate higher-level Union law (Case 1/54 France v High Authority [1954] ECR 7, 23; Case 38/70 Deutsche Tradax GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 145, para. 10.);]

They must apply the rules and procedures laid down in the legislation.

The principle of legality

Actions of European administration occur under and within the law.

Article 52(1) sentence 1 of the Charter of Fundamental Rights:

‘Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms’.

Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required’.

Case C-355/10, European Parliament v Council [2012], ECR I- published in the electronic Reports of Cases para 77:

The principle of legal certainty:

This principle requires EU legal rules to be clear and precise aiming to ensure that situations and legal relationships governed by EU law remain foreseeable.

Cases: Case C-199/03 Ireland v Commission [2005] ECR I-8027, para. 69. See also Case C-29/08 SKF [2009] ECR I- 10413, para. 77.22.  And also see : Cases: C-55/91 Italy v Commission [1993] ECR I-4813, para. 66; Joined Cases T-55/93 and T-232/94, T-233/94 and T-234/94 Industrias Pesqueras Campos v Commission [1996] ECR II-247, paras. 76, 116, 119; Case 43/75 Defrenne v SABENA [1976] ECR 455, paras. 69 ff.; Case C-143/93 Gebroeders van Es Douane Agenten vs Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, para. 27; Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633.

Individuals must be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly;

Cases: e.g. Case C-158/06 ROM-projecten [2007] ECR I-5103, para. 25 with further references.

Retroactive measures shall not be taken except in legally justified circumstances.

Cases: See Case T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261, para. 98, where the Court stated that ‘provisions of Community law have no retroactive effect unless, exceptionally, it clearly follows from their terms or general scheme that such was the intention of the legislature, that the purpose to be achieved so demands and that the legitimate expectations of those concerned are duly respected’.

Further, public authorities shall act and perform their duties within a reasonable time.

Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, para. 140.

The principle of protection of legitimate expectations

This has been recognised since the very early case law of the CJEU as sub-principle of the rule of law:

Cases: See Case 111/63 Lemmerz-Werke v High Authority of the ECSC [1965] ECR 677, where the concept of protection of legitimate expectations was first explicitly enunciated. See also Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, 55; Cases 42 and 49/59 S.N.U.P.A.T. v High Authority [1961] ECR 53; Case 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v ECSC High Authority [1962] ECR 253.

Actions of public bodies shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.

Legitimate expectations shall be duly taken into account where an administrative decision is cancelled or revoked.

The principle of proportionality

This is a criterion for the legality of any act of Union law.

Law: Article 5(4) TEU ‘Under the principle of proportionality,the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.

CJEU: requires that any measure of the European administration be based on law; to be appropriate and necessary for meeting the objectives legitimately pursued by the act in question; where there is a choice among several appropriate measures, the least onerous measure must be used; and the charges imposed must not be disproportionate to the aims pursued.

Cases: See e.g. Case C-265/87 Schräder v Hauptzollamt Gronau [1989] ECR I-2237 para 21. See also e.g. Case C 343/09 Afton Chemical v Secretary of State for Transport [2010] ECR I 7027, para 45, and Joined Cases C 581/10 and C 629/10 Nelson and Others v Deutsche Lufthansa AG (C-581/10) and TUI Travel and Others v Civil Aviation Authority (C-629/10) [2012] published in the electronic Reports of Cases, para 71.

Next to legislative action as provided for in Protocol n° 2 on the application of the principles of subsidiarity and proportionality.  The principle of proportionality is applicable as criteria of legality of acts of European administration as results from Articles 52(1) of the Charter of Fundamental Rights of the European Union and Article 5(4) TEU.

The right to an effective remedy

Cases: Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, para. 9; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 19.

This right is enshrined in Article 47 of the Charter:

Article 47 Charter: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

In Articles 6 and 13 European Convention of Human Rights;

This is recognised as a general principle of EU law.  It is a key component to a legal system under the rule of law.

Neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law.

Cases: See e.g. Case C 128/93 Fisscher v Voorhuis Hengelo BV and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I 4583, para. 37; Case C-261/95 Palmisani v Istituto nazionale della previdenza sociale (INPS) [1997] ECR I-4025, para 27; C-453/99 Courage and Crehan v Courage Ltd and Others [2001] ECR I-6297, para 29; Case C 78/98 Preston and Others [2000] ECR I 3201, para. 39; Case C-187/00 Kutz-Bauer [2003] ECR I-2741, para. 57; Case C-30/02 Recheio-Cash & Carry [2004] ECR I-6051, paras 17, 18; Case C-212/04 Adeneler and Others [2006] ECR I-6057, para. 95; Joined Cases C-231/06 to C-233/06 Jonkman and Others [2007] ECR I-5149, para. 28.

They are obliged to guarantee real and effective judicial protection:

Cases: Case 14/83 von Colson [1984] ECR 1891, para 23.

And are barred from applying any rule or applying any procedure which might prevent, even temporarily, EU rules from having full force and effect.

Case C-213/89 Factortame [1990] ECR I-2433, paras. 19, 20.

The principle of good administration

This is naturally of particular relevance to administrative procedures.

According to the Charter the right to good administration requires that decisions be taken pursuant to procedures which guarantee fairness, impartiality and timeliness.

Good administration includes the right to be given reasons and the possibility of claiming damages against public authorities who have caused harm in the exercise of their functions.

Good administration also requires the protection of the rights of defence and of language rights.

In addition, good administration extends to information rights which include privacy and business secrets as well as access to information.

It is enshrined in Article 41 of the Charter synthesizing some of the case law of the Court of Justice in this field

Cases: The CJEU has referred to good administration principles since the very early case-law: Joined Cases 7/56, 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 0039; Case 32/62 Alvis [1963] ECR 49, para 1A; Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case 64/82 Tradax v Commission [1984] ECR 1359; see the Explanations Relating to the Charter Of Fundamental Rights, Doc. 2007/C 303/02, at

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri =OJ:C:2007:303:0017:0035:en:PDF

Sub-Principles of the principle of good administration:

The duty of care

This includes the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time: Charter, Article 41(1).

It obliges the administration to carefully establish and review all the relevant factual and legal elements of a case taking into account not only the administration’s interests but also all other relevant interests, prior to making decisions or taking other steps.

AG van Gerven in Case C-16/90 Eugen Nölle v Hauptzollamt Bremen –Freihafen [1991] ECR I-5163; Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, para. 14.

Impartiality requires the absence both of arbitrary action and of unjustified preferential treatment including personal interest:

Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, para. 40; Case T-305/94 Limburgse Vinyl Maatschappij v Commission [1999] ECR II-931, paras. 317ff.

Timeliness, which pertains to the principle of fairness, means that decisions have to be taken within a reasonable time: Article 24 fourth subparagraph TFEU ; Article 20(2)(d) TFEU ; Article 41 (1) Charter

This is justified in part on the basis that slow administration is bad administration:  AG Jacobs in C-270/99 P Z v Parliament [2001] ECR I-9197, para. 40 with reference to Art. 41 of the Charter and claiming that this was ‘a generally recognised principle.’

And it might also be in violation of the concept of legal certainty.

The right to a fair hearing

This must be observed in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person.

Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533, para. 325.

That principle (audi alteram partem or audiatur altera pars) is addressed in Article 41(2)(a) and (b) Charter;

Article 41(2)(a) Charter: The right to good administration includes: ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;’ ; Article 11(1) ‘The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’ and (3) TEU ‘The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.’

It cannot be excluded or restricted by any legislative provision:

Case T-260/94 Air Inter v. Commission [1997] ECR II-997, para. 60; case C-135/92 Fiskano v. Commission [1994] ECR I-2885, para. 39

The right to a fair hearing requires that the party concerned must receive an exact and complete statement of the claims or objections raised and must also be given the opportunity to make its views known on the truth and relevance of the facts and on the documents used.

See, e.g., Case 100/80 to 103/80 Musique Diffusion française v Commission [1983] ECR 1835, para. 10; Case 121/76 Moli v Commission [1977] ECR 1971, para. 19; Case 322/81 Michelin v Commission [1983] ECR 3461, para. 7; Case C-328/05 SGL Carbon v Commission [2007] ECR I-3921, para. 71. In Joined Cases C-402/05 P and Case C-415/05 P Kadi v Council and Commission [2008] ECR I-6351, paras. 338-352, the Court held that overriding considerations of safety or the conduct of international relations might justify that certain matters may not be communicated to the persons concerned, but do not allow for evidence used against them to justify restrictive measures or for them not to be afforded the right to be informed of such evidence within a reasonable period after those measures were taken.

The right of access to the file is essential in order to enjoy the right to a fair hearing. The right of access to the file is the right to get full information on matters which may affect a person’s position in an administrative procedure, especially where sanctions may be involved.

Case 270/82 Estel v Commission [1984] ECR 1195, paras. 13ff.; Case 64/82 Tradax v Commission [1984] ECR 1359, paras. 21f.; Case C-34/89 Italy v Commission [1990] ECR I-3603, paras. 14f.; Case T-100/92 La Pietra v Commission [1994], ECR (civil service) I-A-83, II-275, paras. 43ff.; Case C-54/95 Germany v Commission [1999] ECR I-35, para. 118.

It includes the right to get the administration’s response to complaints or representations,

Case 179/82 Lucchini Siderurgica v Commission [1983] ECR 3083, para. 27; Cases 96-102 and 104-106 and 110/82 NV IAZ International Belgium v Commission [1983] ECR 3369, paras. 12ff.

And to receive notice of the outcome of procedures and of decisions made:

Case 120/73 Lorenz v Germany [1973] ECR 1471, para. 5; Case 121/73 Markmann v Germany [1973] ECR 1495, para. 5; Case 122/73 Nordsee v Germany [1973] ECR 1511, para. 5; Case 141/73 Lohrey v Germany [1973] ECR 1527, para. 5; see also Ralf Bauer, Das Recht auf eine gute Verwaltung im Europäischen Gemeinschaftsrecht (Frankfurt/Main: Peter Lang, 2002) 64.

This includes information related to the rights of appeal.

Case 41/69 Chemiefarma v Commission [1970] ECR 661, para. 27.

See also Commission ‘Code of Good administrative behaviour’, Point 3, third indent:

‘Where Community law so provides, measures notified to an interested party should clearly state that an appeal is possible and describe how to submit it, (the name and office address of the person or department with whom the appeal must be lodged and the deadline for lodging it).Where appropriate, decisions should refer to the possibility of starting judicial proceedings and/ or of lodging a complaint with the European Ombudsman in accordance with Article 230 or 195 of the Treaty establishing the European Community.’ European Ombudsman ‘Code of Good administrative behaviour’, Article 19 – indication of the possibilities of appeal: ‘A decision of the Institution which may adversely affect the rights or interests of a private person shall contain an indication of the appeal possibilities available for challenging the decision. It shall in particular indicate the nature of the remedies, the bodies before which they can be exercised, as well as the time limits for exercising them. Decisions shall in particular refer to the possibility of judicial proceedings and complaints to the European Ombudsman under the conditions specified in, respectively, Articles [263] and Articles [228 TFEU].’

The duty to give reasons

The duty concerns decisions and arises from Article 296(2) TFEU.  It is recognised as a right under Article 41(2)c) of the Charter of Fundamental Rights of the European Union as well as being an essential component of the right to an effective remedy recognised in Article 47 of the Charter of Fundamental Rights of the European Union.

The obligation to give reasons comprises an indication of the legal basis of the act, the general situation which led to its adoption and the general objectives which it intended to achieve:

Case 5/67 Beus GmbH v Hauptzollamt München [1968] ECR 83, 95 (English Special Edition 83); See also Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305, para. 510; Case T-70/99 Alpharma v Council [2002] ECR II-3495, para. 394; Case C-304/01 Spain v Commission [2004] ECR I-7655, para. 51; Case C-184/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789, para. 79; Case C-342/03 Spain v Council [2005] ECR 1975, para. 55.

The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the authority which adopted the measure in such a way as enable the persons concerned to decide if they want to defend their rights by an application for judicial review.

Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, paras. 14, 26.

The principles of transparency and of participatory democracy

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable also to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability. In order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

The right of access to documents

See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to protection of personal data

This is embedded in Article 16(1) TEU and in Article 8 of the Charter.

Regulation (EC) no 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

Special attention needs to be dedicated to data protection aspects of complex and intertwined administrative procedures involving as well EU institutions, bodies, offices and agencies as member States’ authorities, which are related to interadministrative information exchange and databases.

Given that many administrative procedures are inextricably linked to IT systems (e.g. EU PILOT for infringements, CHAP for COM communication with complainants, ARES for COM document management, GEDA and EPADES for EP document management, etc.),

The principle of transparent information management

This includes duties to record data processing activities.  See European Ombudsman ‘European Code of Good administrative behaviour’, Article 24 – Keeping of adequate records: ‘The Institution’s departments shall keep adequate records of their incoming and outgoing mail, of the documents they receive, and of the measures they take.’

This duty supports data protection and also fosters inter-administrative accountability and interaction with regard to collaborative information gathering. According to the principle of data quality, data used by the EU Administration shall be accurate, up-to-date and lawfully recorded. The data supplying authority shall be responsible for ensuring that the data are accurate, up-to-date and lawfully recorded.

Most people do not know about this so be prepared for a surprise.

Your right – yes for you personally – to documents of EU instititions  is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to documents is a right enshrined in the Treaty Establishing the European Union:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter of Fundamental Rights of the European Union [“European Charter”]:

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

In principle therefore you are entitled to documents relating to the forthcoming Brexit negotiations.  There are of course limitations and exceptions.  If any exception or limitation might be invoked in relation to contemporaneous disclosure of Brexit negotiation documents, a main question is whether there is an overriding interest favouring contemporaneous disclosure.  And even if there is any delay in disclosure, there remains the issue of when disclosure will take place.

This law is implemented in an EU Regulation: Regulation No 1049/2001.  Which is grandly titled:

 REGULATION (EC) No 1049/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2001  regarding public access to European Parliament, Council and Commission documents

Here we will do things a little bit “backwards” by setting out the Articles of the Regulation so you can see the “nuts and bolts” of the law.  However, unlike statute laws of English and other common law countries, when interpreting the Articles of an EU Regulation, the preambles and recitals are the first source to consult.

For Regulation 1049/2001 these are at the beginning under the oh so grand heading:

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 255(2) thereof,
Having regard to the proposal from the Commission (1),
Acting in accordance with the procedure referred to in Article 251 of the Treaty (2) …..

And then the Preambles and Recitals continue in this vein and here are set out just the first few and grandest of them all.  The first are the most important:

Whereas:
(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a demo­cratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EUTreaty and in the Charter of Fundamental Rights of the European Union,

(3)  The conclusions of the European Council meetings held at Birmingham, Edinburgh and Copenhagen stressed the need to introduce greater transparency into the work of the Union institutions. This Regulation consolidates the initiatives that the institutions have already taken with a view to improving the transparency of the decision-making process.

(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.

The remainder of the Preambles and Recitals can be found in the Regulation:: Regulation No 1049/2001

Again, working from the end first these words found at the end of the Articles are significant for you personally:

“This Regulation shall be binding in its entirety and directly applicable in all Member States.”

This makes the regulation have direct application in every Member State to give effect to your personal right to access to EU documents including EU Brexit negotiation documents.

And here are the Articles:

Article 1

Purpose
The purpose of this Regulation is:

(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission (hereinafter referred to as ‘the institutions’) documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents,

(b) to establish rules ensuring the easiest possible exercise of this right, and

(c) to promote good administrative practice on access to docu­ments.

Article 2

Beneficiaries and scope

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

2. The institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.

3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

4. Without prejudice to Articles 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form or through a register. In particular, documents drawn up or received in the course of a legislative procedure shall be made directly accessible in accordance with Article 12.

5. Sensitive documents as defined in Article 9(1) shall be subject to special treatment in accordance with that Article.

6. This Regulation shall be without prejudice to rights of public access to documents held by the institutions which might follow from instruments of international law or acts of the institutions implementing them.

Article 3

Definitions

For the purpose of this Regulation:

(a) ‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;

(b) ‘third party’ shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community insti­tutions and bodies and third countries.

Article 4

Exceptions

1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

— public security,

— defence and military matters,

— international relations,

— the financial, monetary or economic policy of the Community or a Member State;

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

— commercial interests of a natural or legal person, including intellectual property,

— court proceedings and legal advice,

— the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institu­tion, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.

Article 5

Documents in the Member States

Where a Member State receives a request for a document in its possession, originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation.

The Member State may instead refer the request to the institution.

Article 6

Applications

1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing informa­tion on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institu­tion concerned may confer with the applicant informally, with a view to finding a fair solution.

4. The institutions shall provide information and assistance to citizens on how and where applications for access to docu­ments can be made.

Article 7

Processing of initial applications

1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the docu­ment requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

Article 8

Processing of confirmatory applications

1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an applica­tion, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceed­ings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the rele­vant provisions of the EC Treaty.

Article 9

Treatment of sensitive documents

1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’or‘CONFIDENTIEL’in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.

3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.

4. An institution which decides to refuse access to a sensi­tive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4.

5. Member States shall take appropriate measures to ensure that when handling applications for sensitive documents the principles in this Article and Article 4 are respected.

6. The rules of the institutions concerning sensitive docu­ments shall be made public.

7. The Commission and the Council shall inform the Euro­pean Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.

Article 10

Access following an application

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant’s preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.

2. If a document has already been released by the institution concerned and is easily accessible to the applicant, the institu­tion may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document.

3. Documents shall be supplied in an existing version and format (including electronically or in an alternative format such as Braille, large print or tape) with full regard to the applicant’s preference.

Article 11

Registers

1. To make citizens’ rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in elec­tronic form. References to documents shall be recorded in the register without delay.

2. For each document the register shall contain a reference number (including, where applicable, the interinstitutional reference), the subject matter and/or a short description of the content of the document and the date on which it was received or drawn up and recorded in the register. References shall be made in a manner which does not undermine protection of the interests in Article 4.

3. The institutions shall immediately take the measures necessary to establish a register which shall be operational by 3 June 2002.

Article 12

Direct access in electronic form or through a register

1. The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned.

2. In particular, legislative documents, that is to say, docu­ments drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible.

3. Where possible, other documents, notably documents relating to the development of policy or strategy, should be made directly accessible.

4. Where direct access is not given through the register, the register shall as far as possible indicate where the document is located.

Article 13

Publication in the Official Journal

1. In addition to the acts referred to in Article 254(1) and

(2) of the EC Treaty and the first paragraph of Article 163 of the Euratom Treaty, the following documents shall, subject to Articles 4 and 9 of this Regulation, be published in the Official Journal:

(a) Commission proposals;

(b) common positions adopted by the Council in accordance with the procedures referred to in Articles 251 and 252 of the EC Treaty and the reasons underlying those common positions, as well as the European Parliament’s positions in these procedures;

(c) framework decisions and decisions referred to in Article 34(2) of the EUTreaty;

(d) conventions established by the Council in accordance with Article 34(2) of the EUTreaty;

(e) conventions signed between Member States on the basis of Article 293 of the EC Treaty;

(f) international agreements concluded by the Community or in accordance with Article 24 of the EUTreaty.

2. As far as possible, the following documents shall be published in the Official Journal:

(a) initiatives presented to the Council by a Member State pursuant to Article 67(1) of the EC Treaty or pursuant to Article 34(2) of the EUTreaty;

(b) common positions referred to in Article 34(2) of the EU Treaty;

(c) directives other than those referred to in Article 254(1) and

(2) of the EC Treaty, decisions other than those referred to in Article 254(1) of the EC Treaty, recommendations and opinions.

3. Each institution may in its rules of procedure establish which further documents shall be published in the Official Journal.

Article 14

Information

1. Each institution shall take the requisite measures to inform the public of the rights they enjoy under this Regulation.

2. The Member States shall cooperate with the institutions in providing information to the citizens.

Article 15

Administrative practice in the institutions

1. The institutions shall develop good administrative prac­tices in order to facilitate the exercise of the right of access guaranteed by this Regulation.

2. The institutions shall establish an interinstitutional committee to examine best practice, address possible conflicts and discuss future developments on public access to documents.

Article 16

Reproduction of documents

This Regulation shall be without prejudice to any existing rules on copyright which may limit a third party’s right to reproduce or exploit released documents.

Article 17

Reports

1. Each institution shall publish annually a report for the preceding year including the number of cases in which the institution refused to grant access to documents, the reasons for such refusals and the number of sensitive documents not recorded in the register.

2. At the latest by 31 January 2004, the Commission shall publish a report on the implementation of the principles of this Regulation and shall make recommendations, including, if appropriate, proposals for the revision of this Regulation and an action programme of measures to be taken by the institutions.

Article 18

Application measures

1. Each institution shall adapt its rules of procedure to provisions of this Regulation. The adaptations shall take effect  from 3 December 2001.

2. Within six months of the entry into force of this Regulation, the Commission shall examine the conformity of Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community with this Regulation in order to ensure the preservation and archiving of documents to the fullest extent possible.

3. Within six months of the entry into force of this Regula­tion, the Commission shall examine the conformity of the existing rules on access to documents with this Regulation.

Article 19

Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.

It shall be applicable from 3 December 2001.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 30 May 2001.

For the European Parliament     For the Council
The President     The President
N. FONTAINE     B. LEJON

Received a Getty Images threat letter?  Don’t know what to do about it?

Are they accusing you of using images without permission on your website or blog?

Are Getty Images demanding large amounts of money? 

Is a debt collector like Altradius harassing you for the money? 

Don’t understand copyright infringement?

If you have been threatened and don’t want to pay the very large sums Getty Images claim there is help.

It will cost you nothing to contact us to find out more: telephone 0208 663 0044 – email “mail { at } cliffordmiller.com” and include a copy of Getty Images’ copyright threat letter.

Many years ago someone came seeking help with one of these Getty Images threat letters and we told them it would cost more to get advice than to pay up so they went away.  And that bothered us then and since.  So after later taking on a couple of cases successfully we decided to offer a service like this.

It takes a lot more time to provide the service than it is worth to the average lawyer but we know these Getty Images threat letters worry people a great deal we so offer this service generally at well below normal cost semi-“pro bono“.  It helps the “little people” who are threatened even if it is just one image.   It also saves people in business a great deal of their time and worry and lets them get on with their business and do what they do best – earn a living.

Some people and businesses receive initial demands for thousands of dollars, pounds sterling [and almost any other currency you care to think of]. These Getty Images demand letters have earned the nickname with some as the Getty Images “extortion letter“. Business owners almost invariably are unaware of any potential problem until the Getty Images threat letter arrives. Often an independent website designer was responsible for selecting and including the alleged offending images in the business’ websites.

If you cannot phone or email right now you can still post a comment on this page at the end and let us know with some brief details of the problems you have experienced.  We will need your contact details to contact you so don’t forget an email address and/or a telephone number.  Or you can contact us via our website: Clifford Miller.

This post is an addendum to our main post on this topic found here:-

The Getty Images Rip-Off, You, Copyright & The Law – February 28, 2011

Clifford Miller’s legal practice website can be found here:-

Clifford Miller

He is a commercial lawyer with specialist expertise in:-

  • Intellectual Property
  • European & Competition/Anti-Trust Law
  • Computer Law & IT Law

[STOP PRESS – Lawyers too expensive? Then see:-

Getty Images Threat Letter – UK Survival Service  Updated 9 April 2014]

Getty Images, the international online supplier of photographic images has been routinely threatening numerous morally blameless and innocent owners of legitimate UK businesses with copyright infringement and damages for using on their websites images Getty claim rights to.

Have you received a Getty Images copyright infringement letter demanding large amounts of money and accusing you of using images without permission on your website or blog?  Is a debt collector like Altradius harassing you for the money? 

Don’t pay up.  There is help.

Read about the issues in this article and if you decide you want our help it will cost you nothing to contact us: telephone 0208 663 0044 – email “mail { at } cliffordmiller.com” and include a copy of Getty Images copyright threat letter.

We could save you a great deal of money even if you think there is no way to avoid it.

We have saved clients a great deal of money.  Even if you think there is no way to avoid it we could help you.

We have successfully dealt with Getty Images for clients and know how to deal with their threats.  To date none of our clients have been sued by Getty Images.   

We have a modest inexpensive fixed fee which is affordable by small businesses and private individuals.  You know what it will cost from the outset and it is a fraction of what Getty Images want from you.

Some businesses have received initial demands for thousands of dollars, pounds sterling [and almost any other currency you care to think of]. These Getty Images letters have earned the nickname with some as the Getty Images “extortion letter”. The business owners almost invariably are unaware of any potential problem until the Getty letter arrives. Also often an independent website designer was responsible for selecting and including the alleged offending images in the business websites.

Getty Images’ business practices and their threats are discussed extensively on web fora worldwide.  Try this Google search Getty Images Forum.

It is stressful and frightening to receive these demands. Getty also seem to engage in “hit-and-run” claims.  They pop up, issue a demand, get ignored or challenged, disappear for a few years and then pop up again with their lawyers making threats and demanding more. Getty typically start by claiming approximately £2000 per image. Most business owners consider these sums are extortionate.   The problem was reported in UK’s The Guardian newspaper: “Is a Picture Really Worth £1000?Wendy M Grossman – The Guardian, Thursday 27 November 2008

The fees charged by Getty appear unsustainable and uneconomic. The Guardian was told by photographer Tony Sleep (halftone.co.uk):-

In the UK they’d struggle to make these amounts stick,” he says. “UK law is only concerned with restoring the situation had licensing been correctly obtained. The courts don’t like to be used as a means of extortion.

Are Photographer Copyright Owners Losing Out Also

Some photographers who signed exclusive deals with Getty have received not a penny.  Flickr users are offered just 20% of what Getty might charge.  Getty may not sell a single image [but still tie up the photographer in an exclusive deal].  Similar genres and types of images can be purchased outright “royalty free” for between £3 to £5 from other sources such as istockphoto.com, which is now ironically owned by Getty Images.

Is There Anything You Can Do?

The problem for any business is that it is far cheaper and less risky to pay up than to risk a legal claim in the Courts.  So is this the end of the story?

No. 

We have assisted a number of clients who have had this problem.

What is the law?

Innocence is no defence to infringement in copyright law.  There is an innocence defence but only to damages claims  and it is normally unlikely to apply. The copyright owner cannot claim damages if you can show you did not know and had no reason to believe that copyright existed.  The problem is that most modern photographs will be copyright works so you will be always likely to have reason to believe copyright exists [even if in the case concerned it did not, but then there could be no damages].

To be able to sue in their own name Getty Images must be either the copyright owner or have an exclusive licence from the copyright owner.  This is not the case particularly for  non exclusive “rights managed” images, where Getty Images only have the rights to manage and do not own copyright and may not have an exclusive licence.  This is potentially curable if appropriate agreement can be entered into with the photographer/copyright owner.  If it has not been or cannot be, then Getty Images can take no legal action in such cases.

So what is the position over the damages claims Getty Images make?

Without our help you might not know how to avoid paying.  You may decide to pay something, but how much should you pay and can you recover compensation yourself?  And how can you avoid paying anything?

A copyright owner or exclusive copyright licensee is entitled to claim damages to put them in the position they would have been in had there been no infringement ie as if a licence had been paid for.  The amount of the licence fee is the commercial rate.  If the images concerned have never been licensed or only rarely licensed there is no commercial rate.  A Court would have to consider all relevant evidence to assess what a commercial licence fee would be.

There are methods by which it can be possible to avoid legal proceedings.  Even in very difficult cases where large numbers of images have been used and eye-watering amounts of money might be claimed, you may be able to have a reasonable licence fee established despite lack of agreement by Getty Images or continuing threats from them.

Compensation from Website Designer

If the website designer is still in business and can be found it might be possible to claim a contribution or indemnity from them.  In many cases the designer can no longer be found.  Clearly when choosing a website designer it is worth covering key issues in a brief agreement and getting details  of insurers and confirmation of insurance cover for copyright infringement claims and other public liabilities.

Technical Legal Issues

Some technical legal issues are mentioned here but not in detail. For most contemporary photographs it is unlikely they will affect the ability to sue for infringement of copyright in modern photographs from contemporary photographers. The UK law before 1989 is also different to that since 1988 [and similarly for 1957 and 1956 and 1912 and 1911].  Where and when a photograph is taken and by whom can affect the position as well as where and when the picture was first published.  The photograph must be an original copyright work, which most if not all photographs will be.  If the photographer who took the picture is not a UK national the nationality must be of a country the nationals of which qualify for UK copyright protection for their copyright works.

Need Help?

To find out about our very modest and reasonable fixed fee telephone 0208 663 0044 or email “mail { at } cliffordmiller.com” and include a copy of Getty Images’ copyright threat letter.  You know what it will cost from the outset.

You can also just post a comment on this page at the end and let us know with some brief details of the problems you have experienced.  If you post a comment just asking for our help the comment is not published.  Don’t forget we will need your contact details to contact you so don’t forget an email address and telephone number.

Our fees are modest because we have the know-how to deal with these cases efficiently from acting previously for paying commercial clients with substantial sums involved.  You can benefit from that know how and expertise.

Clifford Miller’s legal practice website can be found here:-

Clifford Miller

He is a commercial lawyer with specialist expertise in:-

  • Intellectual Property
  • European & Competition/Anti-Trust Law
  • Computer Law & IT Law

Published March 2013 for The Law Society Advocacy Section Newsletter under the headline “Pointing the finger

Clifford G. Miller, a solicitor and a former university lecturer, considers recent developments questioning the infallibility of fingerprint forensic evidence

For nearly 100 years, internationally and in the UK, 16 ridge characteristics of partial latent fingerprints found at crime scenes have been used as the standard by fingerprint examiners to compare against inked prints taken from suspects (see R v Castleton (Thomas Herbert) (1910) 3 Cr App R 74). These identifications have, in all but rare cases, been treated unquestioningly as an exact means of linking a suspect to a crime scene print.

The standard of taking 16 ridge characteristics was based on a 1912 paper published in France by M. Alphonse Bertillon (Les empreintes digitales, Archives d’anthropologie criminelle, pages 36-52).

In a 1999 Court of Appeal judgment, the then vice president of the court, Lord Justice Rose, found that:

 … in recent times, the originals of the prints used by Bertillon have been examined and revealed conclusively to be forgeries. It is therefore apparent that the 16 point standard was adopted on a false basis” (Buckley, R v [1999] EWCA Crim 1191 (30 April 1999)).

In the last decade, there have been dramatic developments calling into question the reliability of fingerprint identification of crime suspects. The scientific foundation of the fingerprint field has now come to be questioned. Latent fingerprint identifications may not be as reliable as previously assumed (see SA Cole. 2002. Suspect Identities: A History of Fingerprinting and Criminal Identification. Boston: Harvard University Press; Epstein).

Uniqueness of prints is impossible to establish scientifically. It is not possible to state with certainty that no two people have exactly the same fingerprints, nor that an individual’s fingerprints are unchanging over time. Fingerprints of genetically identical twins are closely similar but not identical. This suggests a reasonable inference is that two individuals’ fingerprints are highly unlikely to be indistinguishable. But can one determine with adequate reliability that an imperfect impression at a crime scene was made by the same finger that made an impression in a file from years before, possibly with imperfections which differ?

In October 2007, Baltimore County Circuit Judge Susan M Souder refused to allow testimony of a fingerprint analyst that a latent fingerprint was made by the defendant. It was a capital case. Judge Souder held that traditional fingerprint analysis to be “subjective, untested, unverifiable identification procedure that purports to be infallible” (State of Maryland v Bryan Rose. In the Circuit Court for Baltimore County. Case No. K06-545).

Developments in this most basic of all forensic evidence fields have often been overlooked, including in England and Wales, even though some of the most important have happened very close to home – in the 1998 trial in Scotland of David Asbury for the 1997 murder of Marion Ross. The repercussions led to The Scottish Fingerprint Inquiry, chaired by Sir Anthony Campbell. The extensive report was published on 14 December 2011 after six months of hearing evidence and considerably longer in consideration. The origin of a fingerprint – “Y7″– from the murder scene was alleged by Asbury’s defence to be that of police officer Sharon McKie. In evidence, McKie denied the print was hers and ever being at the scene. After Asbury’s conviction, McKie was prosecuted and convicted of perjury. In 2002, in consequence, Asbury’s conviction was overturned in an unopposed appeal. McKie, her family and her supporters, however, fought hard to establish her innocence. She was eventually unanimously acquitted and, in 2005, won £750,000 damages from the Scottish government.

The main conclusion of The Scottish Fingerprint Inquiry, which almost all courts internationally had not in over 100 years come to appreciate, is:

Fingerprint evidence should be recognised as opinion evidence, not fact, and those involved in the criminal justice system need to assess it as such on its merits … Examiners should discontinue reporting conclusions on identification or exclusion with a claim to 100% certainty or on any other basis suggesting that fingerprint evidence is infallible” (Scottish Fingerprint Inquiry final report, page 740).

Perhaps greater heed should have been taken of the 1999 detailed advice of the English Court of Appeal in Buckley on standards and procedures to be adopted with forensic fingerprint evidence. Lord Justice Rose in judgment also noted the concession of an expert’s testimony in cross-examination, that he “was expressing a professional opinion and not a scientific conclusion”.

Clifford G. Miller BSc ARCS is a solicitor, a former university lecturer in law, at Imperial College, London University, and a published academic on complex technical and medical evidence.

As published December 2012 – The Law Society Advocacy Section Newsletter

Are unproven unscientific theories accepted in court?

Clifford Miller, a solicitor and a former university lecturer, considers some family cases where testimony from since-discredited scientific experts has led to injustices, and looks at how the legal system should manage expert scientific evidence.

In our courts, the innocent are sometimes convicted and children removed from parents on the basis of what are presented as scientific theories. Parents may be accused of Munchausen’s Syndrome by Proxy (MSbP), now renamed Fabricated or Induced Illness (FII) (alleged abuse by inventing illnesses in their children), or murder (due to Shaken Baby Syndrome (SBS) or when more than one child dies from Sudden Infant Death Syndrome (SIDS)). What the average family practitioner may not know is the details of the science behind these allegations.

SIDS

In some cases of SIDS, a parent, often the last person alone with their still living child, is accused of murder. The now discredited expert witness, Professor Sir Roy Meadow, a past President of the Royal College of Paediatrics and Child Health, devised ‘Meadow’s Law’: that in a family ‘one sudden infant death is a tragedy, two is suspicious and three is murder, until proved otherwise’ (The ABC of Child Abuse, Gower Press, 1986).

For SIDS, Meadow’s ‘expert’ testimony was that the chance of two SIDS deaths in one family was one in 73 million. The correct position is that a family with one SIDS death is far more likely to suffer another. This was revealed through one of many sad cases: that of solicitor and mother, the late Sally Clark, accused by Meadow of infanticide, and convicted to life imprisonment. Clark was acquitted on appeal in R v Clark [2003] EWCA Crim 1020, after she had served three years of her sentence.

SBS

In the majority of SBS cases, there is no visible sign of external trauma. Experts infer child abuse by intentional shaking based on evidence of a ‘triad of injuries’ in the brain: subdural hematoma, retinal haemorrhage, and cerebral oedema (Shaken baby syndrome, BMJ 2004;328:720–1).

But in alleged SBS cases, the ‘triad of injuries’ alone now cannot justify a finding of abuse, as demonstrated in R v Harris & Ors [2005] EWCA Crim 1980. Additionally, two British pathologists have found that the ‘triad of injuries’ in SBS can occur in children who have died naturally and not through any abuse. Even where there is evidence of other injuries, it may still be inappropriate to allege abuse. Jayden Wray’s parents were acquitted of murder after evidence showed his fractures could have been caused by his severe rickets due to Vitamin D deficiency.

MSbP

MSbP / FII is a theory and not science. It was originated by Meadow, and if such a syndrome ever existed, even Meadow claimed cases were rare. Post-Meadow, in the case of A County Council v A Mother & Ors [2005] EWHC 31 (Fam), Mr Justice Ryder stated:

‘For my part, I would consign the label MSbP to the history books … I would caution against its use other than as a factual description of a series of incidents or behaviours that should then be accurately set out (and even then only in the hands of the paediatrician or psychiatrist / psychologist). … What I seek to caution against is the use of the label as a substitute for factual analysis and risk assessment.’

The need for change

How or why did the legal process fail? Later it succeeded, but only in some cases. Are the legal systems not dealing with such cases appropriately? Or, once such theories take hold, are lawyers dependent upon experts who, like supertankers, change course only with utmost difficulty once these theories become part of their formal published literature? An NSPCC briefing paper (PDF) published as late as 2011 suggests that MSbP / FII is common, rather than rare, and some of the research cited is by publicly discredited experts. Are expert opinions always dispassionate and objective, or are they sometimes ‘unbalanced, obsessive and lacking in judgment’ (as quoted by the judge in R v Harris & Ors)? The theory-dependence of observation shows that experts may tend to fit evidence to preconception.

Evidentially, we need to know what is true. Lawyers and judges must always question all theories underlying expert testimony, no matter how eminent the expert, or how well accepted such theories might seem. If the expert consensus favours such theories, will the Law Commission’s proposed ‘gatekeeper’ function (for English judges to allow only expert testimony which satisfies a reliability test) ever prevent expert injustice? And do we exclude new theories which may be correct but which are not widely accepted?

Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, Imperial College, London University, and a published academic on complex technical and medical evidence.

[Originally Published 18 June 2012 – For The Law Society Advocacy Section]

Clifford Miller, a solicitor and a former university lecturer, considers modern evidential practice and some new proposals for evidence put forward by the Law Commission.

If you find evidence, its legal rules and how to apply them confusing, you are in good company. The logic can appear tortuous, but mastering it can sometimes make the difference between success and failure on decision-turning facts.

The problems with evidence are compounded by the growth in and need for complex technical, scientific and medical evidence in the modern technological world. As lawyers, we need to be equipped to deal with expert opinion evidence. An expert opinion can now be decisive on the ultimate issue.

The need for change

The philosophical and theoretical bases underpinning modern evidential practice and procedure in the English courts have long been in need of attention. About 20 years ago in his compilation of exploratory essays, Rethinking Evidence (Cambridge University Press), William Twining made a compelling case for a renewed and new approach to the study of evidence, proof and fact-finding in law, recording how evidence scholarship has been, at best, fragmented and spasmodic. Twining noted how Bentham’s Rationale of Judicial Evidence and Wigmore’s Principles of Judicial Proof rank among the major achievements of our scholarly heritage, yet have been largely ignored.

New proposals

Since Twining published Rethinking Evidence, other writers, including Susan Haack and Dr Déirdre Dwyer have been addressing the same issues. Additionally, the Law Commission proposed last year a new reliability-based admissibility test to be applied to most expert opinion evidence tendered for admission in criminal proceedings. The Commission also proposed a rule that expert opinion evidence is admissible only if the court is satisfied that it is sufficiently reliable to be admitted. See the Law Commission Report No 325 on Expert Evidence in Criminal Proceedings in England and Wales (agreed text 21 February 2011).

These proposals follow from the experience in the US of the ‘Daubert rules’. US judges are now ‘gate-keepers’: they are expected to allow the admission of reliable scientific and technical evidence, and to exclude the unreliable before it goes before a jury. The Daubert rules have had a mixed reception in the US, and raise questions that have not been properly dealt with.

Looking ahead

However, proposals of these kinds are considered by many to be a ‘sticking-plaster’ approach to the underlying issue: the need for better developed skills and knowledge necessary to deal effectively with complex scientific and technical evidence in court. And achieving that aim clearly remains some way off.

Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, at a College of London University, and a published academic on complex technical and medical evidence.

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