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Eric Metcalfe

Call: 1999

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Education

BA, LL.B. (Canterbury, NZ), LL.M. (Queen’s, Ontario), D.Phil (Oxon)

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Introduction

Eric is a leading specialist in human rights, public law, EU law and information law. He is ranked as a leading junior in Civil Liberties & Human Rights by both the Legal 500 and Chambers UK and as a leading junior in EU law by the Legal 500. He is described as “a brilliant lawyer and very thoughtful” (Chambers UK, 2021) and “an excellent barrister” (Legal 500, 2021).

Eric is a member of the Equality and Human Rights Commission’s A Panel and the Attorney-General’s B Panel. He is also the general editor of Sweet & Maxwell’s Human Rights Law Reports and a former external fellow of the Bingham Centre for the Rule of Law. He was previously the director of human rights policy at JUSTICE, the UK section of the International Commission of Jurists, between 2003 and 2011. He is direct access qualified.

  • News
  • Human rights

    Eric is a member of the Equality and Human Rights Commission’s A Panel of Counsel. He appears for and advises individuals, NGOs, companies, public bodies and central government departments regarding a very wide range of human rights issues, and is currently instructed in a number of cases pending before the European Court of Human Rights. He has particular expertise in cases involving national security, surveillance, digital rights, privacy and freedom of expression.

    Cases

    His recent work includes:

    • Telegram Messenger LLP v Russia (no 13232/18) – acting for a coalition of international human rights and digital rights organisations in an intervention before the European Court of Human Rights in a complaint by the social messaging app Telegram against its blocking by the Russian authorities due to its refusal to remove end-to-end encryption of its users’ private messages, contrary to article 10 ECHR.
    • Advising a foreign company on its liability under international human rights law and the UN Guiding Principles on Business and Human Rights following the military coup in Myanmar in February 2021.
    • R (M) v Chief Constable of Sussex Police [2021] EWCA Civ 42 – acted for the Appellant, a vulnerable young person at risk of sexual exploitation, in a challenge under article 8 ECHR and data protection law to an Information Sharing Agreement between Sussex Police and a Business Crime Reduction Partnership for the sharing of personal data, including that of minors.
    • Advising a foreign company how to respond to requests from state authorities to provide data for tracing purposes in connection with the Covid-19 pandemic in a manner compatible with its obligations under international human right law and EU data protection law.
    • R (Bridges) v Chief Constable of South Wales Police & Ors [2020] EWHC EWCA 2341 (Admin) – acting for the Information Commissioner (led by Gerry Facenna QC) in a successful intervention in Liberty’s appeal under article 8 ECHR and data protection law against the police’s use of Automated Facial Recognition cameras – the world’s first appeal concerning AFR.
    • R (Michael) v HMP Whitemoor & Anor [2020] EWCA Civ 29 – acted for the Respondents in the very first challenge to the use of video link in civil cases before the Court of Appeal, successfully defending the compatibility of video link hearings with the right to a fair hearing under article 6 ECHR.
    • Advising the Equality and Human Rights Commission on the Home Office’s hostile environment policy.
    • Big Brother Watch v United Kingdom [2018] ECHR 722 – acted for Liberty, the ACLU, and 5 other international human rights groups in the first successful challenge to mass interception of communications and collection of communications data by the UK intelligence services in the post-Snowden era.
    • Gulamhussein and Tariq v United Kingdom (46538/11 and 3960/12, ECtHR, 3 April 2018) – acted for human rights group JUSTICE as third-party intervener in case concerning the Employment Tribunal’s failure to provide a gist of closed material in a discrimination claim.
    • Lüütseep v Estonia (46069/13, ECtHR, 20 February 2018) – acted for ARTICLE 19 and Privacy International as third party interveners in a case concerning the duty to notify subjects of surveillance.
    • Saure v Germany (78944/12, ECtHR, 25 August 2015) – acted for the Media Legal Defence Initiative, The Media Legal Resource Centre Inc, Thomson Reuters, Index On Censorship, Associated Press And The European Publishers Council as prospective third party interveners in a case concerning the German government’s refusal to disclose Stasi records of judges and prosecutors.
    • Liberty and others v GCHQ and others [2014] All ER (D) 156, [2015] All ER (D) 60 and [2015] All ER (D) 231 – successfully acted for Liberty, the ACLU and 5 other international human rights NGOs in their claim against GCHQ concerning the mass surveillance programmes revealed by Edward Snowden.
    • Rapporteur for the International Bar Association’s mission to Azerbaijan and author of its report Azerbaijan: Freedom of Expression on Trial (April 2014), concerning the fair trial rights of journalists and activists under the Aliyev regime.

    Eric’s earlier high profile cases include:

    • Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1(ECtHR) – joint intervention between JUSTICE, Amnesty International and Human Rights Watch concerning use of assurances against torture.
    • Al Rawi and others v Security Service and others [2011] UKSC 34 – managed JUSTICE’s intervention in a successful challenge to the government’s use of closed proceedings in civil claims.
    • WL (Congo) v Secretary of State for the Home Department [2011] UKSC 12 – managed JUSTICE’s intervention re presumption of liberty under the Immigration Act 1971.
    • R (Binyam Mohamed) v Secretary of State for the Foreign and Commonwealth Office [2010] EWCA Civ 65 – managed JUSTICE’s intervention concerning disclosure of classified material relating to torture received from a foreign government
    • Ahmed and others v HM Treasury [2010] UKSC 2 – managed JUSTICE’s intervention in challenge to asset-freezing orders under the United Nations Act 1946.
    • R (A) v B [2009] UKSC 12 – managed JUSTICE’s intervention re jurisdiction of the Investigatory Powers Tribunal to hear claims under the Human Rights Act.
    • Secretary of State for the Home Department v AF and others [2009] UKHL 28 – managed JUSTICE’s intervention concerning absolute duty under Art 6 ECHR to disclose closed material in control order proceedings
    • A and others v United Kingdom (2009) 49 EHRR 29 – acted for JUSTICE in its landmark intervention on the use of closed hearings and special advocates in SIAC proceedings.
    • Al Jedda v Secretary of State for Defence [2007] UKHL 58 – managed JUSTICE’s intervention concerning conflict between UN Security Council Resolution 1546 and right to liberty under Article 5 ECHR
    • Secretary of State for the Home Department v MB [2007] UKHL 46 and Secretary of State for the Home Department v JJ and others [2007] UKHL 45 – managed JUSTICE’s intervention concerning compatibility of control orders with Arts 5&6 ECHR
    • R (Corner House) v Serious Fraud Office and BAE Systems [2008] UKHL 60 – managed JUSTICE’s intervention concerning relationship between prosecutorial discretion and the rule of law.
    • YL v Birmingham City Council [2007] UKHL 27 – managed JUSTICE’s intervention re definition of ‘public authority’ under the Human Rights Act.
    • Roberts v Parole Board [2005] UKHL 45 – acted for JUSTICE concerning use of closed evidence and special advocates in parole board cases.
    • A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71 – managed International Commission of Jurist’s intervention concerning the admissibility of evidence obtained under torture abroad.
    • R v Special Adjudicator ex parte Ullah [2004] UKHL 26 – managed JUSTICE’s intervention concerning the application of Human Rights Act and ECHR to immigration removal decisions.
  • Public law

    Eric has a wide-ranging public law practice, which includes asylum and immigration, commercial and regulatory matters, community care, education, prisoner’s rights, mental health and VAT. He has acted for claimants, defendants and interveners in judicial review proceedings and statutory appeals before the First-tier Tribunal, the Upper Tribunal, the Administrative Court, the Court of Appeal and the Supreme Court.

    Cases

    His recent work includes:

    • R (Gjini) v Secretary of State for the Home Department (CO/4638/2019, Administrative Court, pending) – defending the Respondent’s policy on the withdrawal of passport facilities in relation to persons subject to proceedings for deprivation of British citizenship on grounds of fraud.
    • R (Bridges) v Chief Constable of South Wales Police & Ors [2020] EWCA 2341 (Admin) – acting for the Information Commissioner (led by Gerry Facenna QC) in a successful intervention in Liberty’s appeal under article 8 ECHR and data protection law against the police’s use of Automated Facial Recognition cameras – the world’s first appeal concerning AFR.
    • R (Humnyntskyi & Ors) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin) – acted for the Respondent, defending a major challenge to the Home Office’s policy for accommodation for destitute asylum seekers under paragraph 9, Schedule 10 of the Immigration Act 2016.
    • HM Revenue & Customs v Rank Group & Done Brothers [2020] UKUT 117 (TCC) – acting for HMRC in the long-running, multi-billion EU law challenge brought by Rank plc and Betfred to HMRC’s VAT treatment of Fixed-Odds Betting Terminals (FOBTs), relying on the principle of fiscal neutrality. The case was previously referred to the Court of Justice of the European Union (see Joined Cases C-259/10 and C-260/10 HMRC v The Rank Group plc) in 2012 and the UK Supreme Court in 2015.
    • R (Michael) v HMP Whitemoor & Anor [2020] EWCA Civ 29 – acted for the Respondents in the very first challenge to the use of video link in civil cases before the Court of Appeal, successfully defending the compatibility of video link hearings with the right to a fair hearing under article 6 ECHR.
    • KK (India) v The Secretary of State for the Home Department [2019] EWCA Civ 369 – acted for the Respondent, successfully resisting the Appellant’s appeal concerning refusal of leave outside Immigration Rules on art 8 ECHR grounds.
    • HS (Bangladesh) v The Secretary of State for the Home Department [2019] EWCA Civ 268 – acted for the Respondent, successfully resisting Appellant’s appeal.
    • HB (Kurds) Iran CG [2018] UKUT 430 (IAC)– acted for the Respondent in Country Guidance appeal concerning the risk of ill-treatment of failed asylum seekers of Kurdish origin.
    • R (Bajracharya) v Secretary of State for the Home Department [2018] EWCA Civ 277 – successfully defended the Respondent’s decision to refuse a Tier 2 visa on grounds of non-compliance with Appendix K of the Immigration Rules.
    • C&C v Governing Body of a School, the Secretary of State for the Home Department, and the National Autistic Society (SEN) [2018] UKUT 269 (AAC) – acted for the Claimant at the permission stage in the successful appeal against the FTT’s decision concerning compatibility of regulation 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 with article 14 ECHR.
    • British American Tobacco (Holdings) Ltd v HMRC [2017] UKFTT 167 (TC) – successfully defended HMRC against tobacco company’s appeal against penalty for breach of its duty under s7A of the Tobacco Products Duty Act 1979 to help prevent smuggling.
    • R (Public Law Project) v Lord Chancellor [2016] UKSC 39 – acted for the Office of the Children’s Commissioner for England as third party intervener in PLP’s successful challenge of the proposed ‘residence test’ for legal aid.
    • R (Dean) v Secretary of State for Business, Energy and Industrial Strategy and Dart Energy Ltd (CO/4951/2016, Administrative Court, 15 December 2016, unreported) – acted for the Secretary of State in permission hearing concerning decision to vary licence for petroleum exploration and development in relation to fracking near Chester.
    • Advising the Chartered Institute of Library and Information Professionals (CILIP) concerning the Secretary of State’s oversight of library services under the Public Libraries and Museums Act 1964, as part of CILIP’s My Library My Right campaign in 2015.
    • Projosujadi v Director of Border Revenue [2015] UKUT 297 (TCC) – successful appeal against the Border Force’s refusal to restore alligator-skin handbag imported without certificates under the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
    • R (Cart) v Upper Tribunal [2011] UKSC 28 – managing JUSTICE’s third party intervention before the Supreme Court concerning the amenability of statutory tribunals designated as superior courts of record to judicial review.
  • EU

    Eric is ranked as a leading junior in EU law by the Legal 500. He is currently instructed in a number of EU law matters, including in relation to Brexit and the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, EU data protection and sanctions.

    Cases

    His recent work includes:

    • R (M) v Chief Constable of Sussex Police [2021] EWCA Civ 42 – acted for the Appellant, a vulnerable young person at risk of sexual exploitation, in one of the first cases involving Part 3 of the Data Protection Act 2018 and the provisions of the Law Enforcement Directive, challenging an Information Sharing Agreement between Sussex Police and a Business Crime Reduction Partnership for the sharing of personal data, including that of minors.
    • Case T-332/15 Ocean Capital Administration GmbH and 31 others v Council of the European Union ECLI:EU:T:2020:308 – acted for 32 Iranian companies in proceedings before the General Court seeking annulment of their designation under the Iran (nuclear proliferation) sanctions.
    • Advising a central government department on the application of EU State Aid principles under article 10 of the Northern Ireland Protocol to a business development fund.
    • HM Revenue & Customs v Rank Group & Done Brothers [2020] UKUT 117 (TCC) – acting for HMRC in the long-running, multi-billion EU law challenge brought by Rank plc and Betfred to HMRC’s VAT treatment of Fixed-Odds Betting Terminals (FOBTs), relying on the principle of fiscal neutrality. The case was previously referred to the Court of Justice of the European Union (see Joined Cases C-259/10 and C-260/10 HMRC v The Rank Group plc) in 2012 and the UK Supreme Court in 2015.
    • Case C-507/17 Google Inc v Commission nationale de l’informatique et des libertes (CNIL) – acted for ARTICLE 19, Human Rights Watch, the Electronic Frontier Foundation and 5 other digital rights groups (led by Gerry Facenna QC) in successful intervention challenging the extraterritorial scope of de- indexing obligations for search engines under EU data protection law and the ‘right to be forgotten’.
    • Banger (EEA: EFM – Right of Appeal : South Africa) [2019] UKUT 194 (IAC) – Acted for Secretary of State for the Home Department in appeal concerning implementation of CJEU’s judgment in C-89/17 Banger.
    • Advised on the position of Zambrano carers under the EU Settlement Scheme in February 2019.
    • Advised a central government department on the Technical Standards Directive in 2018.
    • McShane v Secretary of State for Justice [2018] EWHC 494 (Admin) – acted for the Respondent in judicial review proceedings concerning the transfer of a prisoner from an EU member state under Framework Council Decision 2008/JHA/909 on mutual recognition of judgments in criminal matters.
    • Teva Pharmaceuticals Ltd v Medicines and Healthcare Products Regulatory Agency (CO/3516/2016, Administrative Court, 29 November 2016, unreported) – acted for the MHRA resisting the grant of permission in relation to grant of marketing authorisation for generic of Copaxone under Directive 2001/83/EC.
    • A v Director of Public Prosecutions [2016] EWCA Crim 1393 – acted for Applicant in very first challenge brought under Regulation 10 of the Criminal Justice and Data Protection (Protocol No 36) Regulations 2014 to cancel registration of an overseas restraint order for €10 million under the EU Framework Decision on Freezing Orders.
    • Case C-547/14 R (Philip Morris Ltd and others) v Secretary of State for Health; Case C‑477/14 Pillbox 38 (UK) Ltd v Secretary of State for Health; and Case C‑358/14 Poland v Parliament and Council – appeared for the UK government before the CJEU in three cases heard together concerning the Tobacco Products Directive, successfully defending the scope of the Directive in relation to restrictions on packaging, flavouring and e-cigarettes.
    • Delaney v Secretary of State for Transport [2015] EWCA Civ 172 – Successfully resisted the Secretary of State’s appeal against the award of Francovich damages arising from the government’s failure to correctly implement the second European motor insurance directive.
    • Advising a leading UK humanitarian organisation on recent changes to EU State Aid rules.
  • Public international law

    Eric has been involved in a number of leading cases in the field of public international law, particularly relating to the UK’s obligations under international human rights law and international humanitarian law

    Cases

    His work includes:

    • Advising a foreign company on its liability under international human rights law and the UN Guiding Principles on Business and Human Rights following the military coup in Myanmar in February 2021.
    • Advising a central government department on the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances.
    • Advising a central government department on proposals for the extra-territorial jurisdiction of a Bill for regulation of user content uploaded to social media.
    • Jones v United Kingdom (2014) 59 EHRR 1 and Ron Jones v Saudi Arabia [2006] UKHL 26 (House of Lords) – joint intervention between JUSTICE, Redress, Amnesty International and Interights on state immunity of foreign governments for acts of torture.
    • Nada v Switzerland (2013) 56 EHRR 18 – acted for the intervener JUSTICE before the Grand Chamber of the ECtHR in relation to the compatibility of a travel ban under UNSCR 1267.
    • Al Jedda v United Kingdom (2011) 53 EHRR 23 – managing JUSTICE’s intervention in case concerning conflict between UN Security Council Resolution 1546 and right to liberty under Article 5 ECHR
  • Information law

    Eric is co-author of the 5th edition of Blackstone’s Guide to the Freedom of Information Act (OUP, 2013) and regularly appears for appellants, the Information Commissioner and public authorities in appeals before the Information Tribunal. His recent work includes:

    • R (M) v Chief Constable of Sussex Police [2021] EWCA Civ 42 – acted for the Appellant, a vulnerable young person at risk of sexual exploitation, in one of the first cases involving Part 3 of the Data Protection Act 2018 and the provisions of the Law Enforcement Directive, challenging an Information Sharing Agreement between Sussex Police and a Business Crime Reduction Partnership for the sharing of personal data, including that of minors.
    • R (Bridges) v Chief Constable of South Wales Police & Ors [2020] EWCA 2341 (Admin) – acting for the Information Commissioner (led by Gerry Facenna QC) in a successful intervention in Liberty’s appeal under article 8 ECHR and data protection law against the police’s use of Automated Facial Recognition cameras – the world’s first appeal concerning AFR.
    • Brendan Montague v Information Commissioner and Department for International Trade, EA/2019/0154, 4 September 2020 – acted for the Department of International Trade before the Information Tribunal, successfully resisting the appeal by a campaigner seeking the release of post-Brexit trade talks with more than 17 countries under the Freedom of Information Act 2000.
    • Case C-507/17 Google Inc v Commission nationale de l’informatique et des libertes (CNIL) – acted for ARTICLE 19, Human Rights Watch, the Electronic Frontier Foundation and 5 other digital rights groups (led by Gerry Facenna QC) in successful intervention challenging the extraterritorial scope of de-indexing obligations for search engines under EU data protection law and the ‘right to be forgotten’.
    • Lampert v Information Commissioner [2019] UKUT 60 (AAC) – Acted for the Information Commissioner, successfully resisting the Appellant’s appeal in relation to the definition of ‘business’ under s59(1)(b) DPA 1998.
    • Information Commissioner v Halpin [2019] UKUT 29 (AAC) – Acted for the Information Commissioner in a successful appeal against the FTT’s decision directing disclosure of personal data of public authority staff.
    • Advised on a wide range of data protection issues relating to the European Health Insurance Card (‘EHIC’) and the EU reciprocal and cross-border healthcare issues under the GDPR in June 2018.

    Eric regularly advises individuals, companies, public bodies and NGOs on the requirements of the Data Protection Act 2018, the GDPR, and the Law Enforcement Directive. His work includes advising on data transfer agreements and successfully challenging Interpol and Europol over the processing of personal data in respect of individuals subject to Red Notices and Diffusions. He has particular expertise in relation to the Investigatory Powers Act 2016 and the Regulation of Investigatory Powers Act 2000.

    Cases

  • What the directories say

    Civil Liberties & Human Rights: “He’s a brilliant lawyer and very thoughtful.” “He is very knowledgeable of public and international human rights law.” – Chambers UK, 2021

    Leading junior in Civil liberties and human rights (including actions against the police): ‘‘He has unrivalled expertise in data protection and EU law which he utilises in civil liberties cases. He is a rigorous in his preparation for cases and his drafting is clear and persuasive.’’Legal 500, 2021

    Leading junior in EU Law: ‘‘Eric is an excellent barrister. We regularly instruct him in human rights and data protection cases. He is an incredibly trustworthy pair of hands. He has unrivalled expertise in data protection and EU law. He is a rigorous in his preparation for cases and his drafting is clear and persuasive. Eric never loses sight of the important role that evidence plays in bringing complex litigation and is a real team player.’’Legal 500, 2021

    Civil Liberties & Human Rights: “His written submissions are of extremely high quality.” – Chambers UK, 2020

    Leading junior in Civil liberties and human rights (including actions against the police): ‘‘He has a fierce intellect and in-depth knowledge of human rights law, particularly as it relates to surveillance, data protection and freedom of expression.’’Legal 500, 2020

    Leading junior in EU Law: ‘‘A government panelist instructed in serious cases.’’Legal 500, 2020

    Civil Liberties & Human Rights: “He is incredibly good.” Chambers UK, 2019

    Leading junior in Civil liberties and human rights (including actions against the police): ‘‘Very authoritative on privacy and surveillance.’’Legal 500, 2018

    Leading junior in EU Law: ‘‘An outstanding advocate. He is clear, articulate and effective, a pleasure to work with.’’Legal 500, 2018

    Civil Liberties & Human Rights: “He is very knowledgeable and knows human rights back to front.” “Eric is very measured, calm and experienced.” Chambers UK, 2018

    Leading junior in Civil liberties and human rights (including actions against the police): ‘‘Highly praised for the quality of his advocacy.’’Legal 500, 2017

    Leading junior in EU Law: ‘‘A pleasure to work with.’’Legal 500, 2017

    Civil Liberties & Human Rights: “He has a very nice manner in court and is clearly very competent.” “Eric Metcalfe is very good, a sound young junior.” Chambers UK, 2017

    Leading Junior in Civil liberties and human rights (including actions against the police):  “Outstanding on the law and very articulate.” – Legal 500, 2016

    ”Excellent; clear, sharp, and great to work with.” Leading Junior in Civil Liberties and Human Rights Law. Legal 500, 2015

    “Hardworking, with an outstanding intellect and grasp of issues at hand.” Eric is ranked as a leading Junior in Civil Liberties and Human Rights Law. Legal 500, 2014

    Eric Metcalfe is recommended as a leading junior in Civil Liberties and Human Rights Law. Legal 500, 2013

    Eric Metcalfe is recommended as a leading junior in Civil Liberties and Human Rights Law. Legal 500, 2012

  • Additional information

    Eric has a law degree and a degree in history and English literature from the University of Canterbury in New Zealand, an LL.M. from Queen’s University, Ontario and a doctorate in legal philosophy from the Faculty of Law of the University of Oxford. He taught jurisprudence to undergraduate law students at New College and Trinity College, Oxford.

    He has advised and acted for a wide range of human rights organisations including the ACLU, the AIRE Centre, ARTICLE 19, the Bingham Centre for the Rule of Law, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Electronic Frontier Foundation, Human Rights Watch, the Hungarian Civil Liberties Union, Index on Censorship, the Irish Council for Civil Liberties, JUSTICE (the UK section of the International Commission of Jurists), the Kurdish Human Rights Project, the Legal Resources Centre, Liberty, the Media Legal Defence Initiative, and Privacy International. He has carried out human rights work in Armenia, Azerbaijan, Bahrain, Belarus, Northern Ireland, the Republic of Ireland, Russia, Rwanda, Taiwan and Turkey.

  • Publications

    Eric is the General Editor of the Human Rights Law Reports – UK Cases (Sweet & Maxwell), the co-author of the 5th edition of Blackstone’s Guide to the Freedom of Information Act (2013) and a contributor to the Rights and Freedoms volume of the 5th edition of Halsbury’s Laws (2013).

    He was the author of Azerbaijan: Freedom of Expression on Trial, a report by the International Bar Association’s Human Rights Institute published in May 2014.

    His other publications include Freedom from Suspicion: Surveillance Reform for a Digital Age (2011), Secret Evidence (2009), To Assist the Court: Third Party Interventions in the UK (2009), the Counter-Terrorism Act 2008 for Current Law Statutes Annotated (Sweet & Maxwell), and Intercept Evidence (2006).

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