"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Monday, 20 December 2010

Court tweets

A post for Halsbury's Law Exchange, published here

Open justice is one of the most fundamental tenets of English law. Lord Hewart CJ famously declared in R v Sussex Justices, ex parte McCarthy [1923] All ER Rep 233 that:

"... it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done."
Inevitably modern technology has given rise to new issues regarding the scope and application of the principle. Courts have yet to allow television broadcasting, photographing or electronic recording of proceedings; now they must deal with mobile communication devices and the internet, and in particular social networking sites such as Twitter and Facebook.

One suspects that the genie is out of the bottle, and it will therefore be a case of managing the developing technology rather than pretending it does not exist or seeking to exclude it in toto. To that end, the Lord Chief Justice has this morning issued interim guidelines on the use of electronic communications from court. They provide, among other things, that: 
  • subject to the necessary precondition that its use does not pose a danger of interference to the proper administration of justice in the individual case, the use of an “unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice”.
  • an application (formally or otherwise) can now be made by an individual in court to activate an electronic device (phone, laptop or similar). The judge will consider the above precondition and then other factors such as the danger of inadmissible evidence being reported, or pressure on witnesses.
 As mentioned these are interim guidelines, and many more considerations will no doubt come into play in practice. These will include the possibility of anonymous and untraceable publication and indeed publication beyond the reach of national law.

That said, the underlying issues are essentially the same as for pre-internet publishing. In the context of criminal trials, certain things may not be disclosed, such as the identity of a sex abuse complainant, or evidence subject to national security concerns. Jurors must disregard anything they may have heard of the case outside the courtroom, and certainly cannot reveal any of their discussions from the jury room. Nor can the use of technology disturb the conduct of proceedings in court or the court’s own electronic recording facilities.

Restrictions on using electronic devices will therefore have to be imposed on occasion. To that end, the new guidelines seem sensible, and two existing safeguards should suffice to maintain the administration of justice whilst permitting blogging or tweeting from court in most cases.

The first is the wide ranging remedy of contempt of court - equally broad in the scope of its application and in the severity of the potential sanction. The risk of anonymous internet publication remains, but at least the mainstream internet media could be controlled in that fashion.

The second is (in criminal cases) the judge's directions to the jury. There is nothing new about the jury hearing tendentious material about cases - from newspapers, radio or television or even what used to be called the grapevine. Social networking and scurrilous gossip were not, of course, invented with the internet, although the internet has undeniably increased information publication and dissemination to a vast extent. The judge should therefore reiterate with specific reference to the internet the need for the jury to disregard anything said or written about the case outside the proceedings themselves.

The key point remains, however, the principle of open justice. Recently the Guardian reported the declining number of traditional court reporters (not to be confused with law reporters). For all of the potential problems with modern communications, they should generally be welcomed as a means to uphold that cardinal principle. If used responsibly, they should increase public awareness and debate of the legal system, which can only be beneficial.

Thursday, 16 December 2010

Judgment Matters

This article, jointly written with Alexander Horne, has been published in the New Law Journal, (16 December 2010, Vol 160, Issue 7446, p 1735) 

An issue that has been debated since before the inception of the UK Supreme Court is the form in which judgments are delivered. Any such debate needs to consider two fundamental questions: first, the purpose of the judgment, and secondly, the intended audience. This article is mainly concerned with the former.

Appellate judgments serve two primary purposes:

(i) to tell the parties who has won and why; and

(ii) to clarify the law.

It is our contention that both objectives may be adversely affected in part by longer judgments, but more often—and more severely—by multiple judgments being issued with no clear ratio.

Individual judgments have lengthened at all levels in the past few decades, at least in courts of record, as the volumes of the law reports confirm. We suspect several factors are responsible.

First, the statute book has grown substantially in size and complexity in the past decade and a half, and one would expect the length of judgments dealing with statutes to correspond.

Second, from about the 1980s what judges occasionally refer to as the (self explanatory) “photocopying disease” took hold amongst counsel, later supplemented by its variant strain of the “cut-and-paste disease”.

Third, the growth of specialist report series made many more authorities available.

Fourth, and perhaps most significantly, from about the mid-1990s judgments started to become available on the internet. Previously, most unreported judgments effectively vanished. With the internet—coupled with the growing number of specialist series—almost every judgment is now freely available to counsel.

Citation matters

As a result counsel feel able, and often obliged, to cite multiple authorities and judges, in turn, feel compelled to deal with all of them. This is perhaps more acute in the lower courts where a judge might wish, out of caution, to deal with every authority lest failure to do so results in an appeal. In a Guardian Law Blog of 2 September, Adam Wagner lent towards blaming judges for too many authorities being cited and discussed, on the ground that they have the final say as to what appears in a judgment. In our view the blame ought to be shared more equally as between Bench and Bar, at least with regard to courts other than the Supreme Court. If a judgment may be appealed then a judge may feel compelled to deal with each and every argument and authority offered by counsel, although to an extent it may vary according to the degree of familiarity of the judge with the subject matter.

Plurality judgments

A view of significant authority has recently been presented by Baroness Hale, in an interview for the United Kingdom Supreme Court blog. She commented on “plurality judgments”, by which she was referring to single judgments with multiple authors, noting that “the idea of plurality judgments as the norm is very radical” and that while “some of us are sympathetic to it” others in the Supreme Court were not.

Many of the objections to the introduction of plurality judgments can appear self indulgent and miss the point that multiple concurring judgments can run counter to the two primary purposes of judgments identified above. Far from clarifying the law, multiple judgments can result in further confusion if they do not contain a clear and agreed ratio.

As Baroness Hale went on to suggest, on an appellate tribunal some judges will usually have greater experience in some areas than others. It is indeed important that each judge makes an effort to understand the issues rather than automatically deferring to the one with the most experience in the area under consideration, but it does not follow that each is therefore required to give a reasoned opinion. This was never the practice of the House of Lords and has not been the practice of the Supreme Court to date.

Baroness Hale gave as an example R (on the application of E) v Office of the Schools Adjudicator (Governing Body of JFS and others, interested parties) (British Humanist Association and another intervening) [2010] 1 All ER 319, [2009] UKSC 15, a public law case, concerning the lawfulness of a school’s admissions policy. The legal question was a short one: whether the particular grounds for admission were racially or religiously defined (or as Baroness Hale put it, whether one can discriminate without meaning to). Despite the five different majority judgments the question was answered clearly enough.

This will not always be the case, however, particularly not in sophisticated commercial appeals, which might involve a multitude of issues on which judges might differ while agreeing on the result.

Generally, in the common law world, final courts of appeal have not as a uniform practice handed down a single judgment, one notable exception being the Privy Council. The approach adopted by the European Court of Justice and the European Court of Human Rights (delivering a single, composite, judgment reflecting an agreed position) may be one which the Supreme Court could follow. However, we would stress that the issue is not multiple judgments per se, but the lack of a single identifiable ratio.

One advantage of introducing plurality judgments is that it would ensure private debate between the judges hearing the case. The benefits of a round table discussion seem obvious, since, among other things, it would ensure that the judges had considered one another’s views on the case.


Baroness Hale has frequently been a champion of a more diverse judiciary, partly on the grounds that this might allow for different perspectives on cases and avoid the problem of “groupthink”. To achieve such a benefit, it is essential for the judges concerned to deliberate and discuss the case together; otherwise the conclusions reached by these new, diverse, appointees could easily be relegated to a lone dissent or ignored by the other members of the panel.

Baroness Hale went on to say that she hoped it would never become the case that dissents were not permitted, or that a judge would be prevented from describing the facts in a different way or otherwise expressing his own viewpoint. In this respect, dissenting judgments are a red herring. By definition they do not affect the majority decision and therefore have little adverse effect on certainty in the law.

It may be that judges are simply not able to agree (or not within a reasonable time) on all points of the case. In those circumstances, rather than issue multiple judgments which concur in the result but not all of the reasoning, and thus leave the law in a state of flux, it is incumbent on the presiding judge to insist upon a majority decision. This could be done by each judge stating that he agrees with the majority and then going on to give separate reasons in the form of obiter dicta indications as to what they would have preferred to have formed the reasoning for the decision. Of course, that would be an imperfect form of compromise but it would also indicate strongly to the legislature that the law under consideration requires review.

Baroness Hale’s final remark concerned the fact that different readers such as academics and leading practitioners might prefer diverse opinions. This is true, but the advantages of multiple judgments in the form of alternative viewpoints on the law could still be retained even when insisting on a majority ratio for the decision. Academics would then be able to assess what the law presently is against what the other judges would have preferred it to be. Practitioners would be able to extract arguments for subsequent cases, but would not have to charge clients fees for sifting through multiple judgments to determine what they think the law is while adding caveats that it might not be.

Our proposal would not require any radical step or reform, only an insistence that what is already a common practice for the form of judgments becomes a mandatory one.

A model example

The recent case of Radmacher v Granatino [2010] All ER (D) 186 (Oct) provides a model example. Seven judges endorse the leading judgment, Lord Mance adds a separate concurrence while Baroness Hale herself dissents. Practitioners therefore have an indisputable majority ratio, while academics and law reformers have the benefit of the differing views of Lord Mance and Baroness Hale.

Baroness Hale was undoubtedly correct that “the law can never be as clear as people think it is”, but it should aim to be as clear as is practicable to achieve.


Since the above was first drafted, Baroness Hale has returned to the subject in a speech for the First Anniversary Seminar of the Supreme Court. She argues

we should have a flexible approach in which each Justice is free to write but a climate of collegiality and co-operation in plurality judgments is encouraged. At the very least, however many judgments [there] are, there should never be any doubt about what has been decided and why”.

This accords precisely with what we have contended in this article.

Monday, 13 December 2010

A Lord but not a Peer

Another blog for Halsbury's Law Exchange, published here.

This morning the Supreme Court made the following announcement:

"Her Majesty The Queen has signed a warrant declaring that every Justice of the Supreme Court of the United Kingdom will in future be styled as ‘Lord’ or ‘Lady’, to ensure that all Justices of the Court are described and addressed in a similar manner.

The announcement means that Sir John Dyson, the most recent appointment to the Supreme Court, who is not a Life Peer and was appointed from the Court of Appeal of England and Wales, will now be styled Lord Dyson.

Lord Phillips, President of the Supreme Court, said: “One of the hallmarks of the new Court is that, in order to ensure the complete separation of the Court from the legislature, new Justices are not made Life Peers, and that those who are already Life Peers are unable to sit and vote in the House of Lords.

“However, the appointment of colleagues who are not Life Peers has inevitably led to some confusion about the manner in which they should be described and addressed. This announcement is a welcome move to help us introduce consistency and avoid the complications of a variety of titles being employed.”

Today’s announcement means that the courtesy title will be conferred upon new Justices for life once they are sworn in at the Supreme Court. The wife of a Justice will be described as “Lady…”

One has to say that it is rather surprising that no-one seems to have thought of this potential confusion beforehand. I had assumed that they were simply going to allow the inconsistency to continue for such time as life peers remained on the bench, which given the mandatory retirement age would not have been more than a few years. The confusion presumably did not occur during actual hearings, since all judges in the High Court and above are referred to in court as “my Lord” or “my Lady”. Moreover, there are already judges with different titles throughout the various tiers, including County Court judges sitting as judges of the High Court, barristers sitting as Deputy High Court Judges, High Court judges sitting in the Court of Appeal, Criminal Division and retired judges sitting as “Sir (name)”.

It should be recalled that, according to Lord Phillips, the reason for the Supreme Court’s creation was not that the Appellate Committee of the House of Lords was in fact insufficiently independent, but that it was perceived to be so. Creating Lords who are not peers in fact, but who will doubtless be perceived as such by many, seems inconsistent with that purpose.

A further, and unfortunate, perception to which the announcement may give rise is that insufficient planning went into the creation of the Court. The potential for confusion during the short number of years that Law Lords continued to sit on the Court was clearly foreseeable. To bring about an abrupt change some months after Sir John (now Lord) Dyson was appointed rather creates the impression of a work in progress than a carefully crafted new constitutional institution.

Friday, 10 December 2010

An innocent abroad: the non-trial of P G Wodehouse

This article has been published in Criminal Law & Justice Weekly,Vol. 174, 18 December 2010, p 791

Having recounted two famous cases of wartime treason last month, a few words might be appropriate about a famous case of non-treason from the last war.  It involved one of England’s greatest ever authors and is a lesson in overreaction, though ultimately a correct case of legal inaction.

In early 1940, as Panzer divisions smashed through the low countries and into France, it need hardly be said that most of Britain would have followed the news with close attention, anxiety and horror.  Not so, it would appear, a 58 year old Englishman living in the south of France, where he had resided for tax reasons since 1934.  PG Wodehouse paid such little heed to world events that not even news of the atrocious events unfolding a few hundred miles away in the same country prompted him to flee before occupying German troops arrived.  Shortly after the Vichy regime was formed, Wodehouse found himself interned along with all other British nationals in France. 

In 1941, realising how naive and harmless he was, the Nazis let him go shortly before he was due to be released in any event (upon reaching the age of 60), but at the same time co-opted his naivety for some light hearted radio broadcasts to America, which was still a neutral party at the time. Wodehouse accepted because he wanted to show some gratitude for the correspondence he had received from American fans during his internment. 

To a modern audience, the broadcasts come across as politically irrelevant as they were irreverent; no more than light hearted Wodehousian banter about barren towns, inept guards and the probable need to take a letter of introduction if he finally got to see his wife again. To a wartime audience in Britain, however, they were nothing of the sort. Instead they were sufficiently offensive to have Wodehouse debated as a possible traitor in the House of Commons, and to have him specifically likened to Lord Haw Haw. 

A number of public figures and institutions joined the attack, including the author AA Milne.  Others came to Wodehouse’s defence, including George Orwell and Evelyn Waugh.  Thus arose perhaps the most surreal literary showdown in English history: the genial and unworldly Winnie the Pooh taking shots at the equally genial and unworldly Bertie Wooster, with Lord Sebastian Flyte and Winston Smith appearing for the defence. 

One supposes Bertie Wooster might have gone pheasant shooting with Flyte in the Hundred Acre Wood, though Smith would have been denied any comparable pleasures in 1984. 

In the event, no charges were ever brought and a consensus emerged that Wodehouse was wholly innocent.  The affair had a terrible irony, however, given that just about the only overt political reference in any of Wodehouse’s pre-war works was the character Roderick Spode, a direct satire of Oswald Mosley.  It left a sad legacy too: Wodehouse never returned to England. 

The story is a salutary reminder that one can go too far in the most worthy of causes.  Obviously it was right that people did not want to give Nazi Germany a crumb of comfort in 1941.  But, properly understood, Wodehouse’s broadcasts gave no such crumb, or even a speck.  Nor does that conclusion require hindsight, still less any Orwellian rewrite of history.  Anyone familiar with Wodehouse’s works – as most educated Englishmen were at the time – and the man himself, would have seen the innocent naivety for what it was. 

One finds some mild parallels today, without drawing too long a bow.  One recalls Paul Chambers’ tweet in frustration at thwarted weekend plans that he would blow up an airport. It seems absurd that anyone would think his post a serious statement of terrorist intent.  And yet Chambers found himself fined under the Communications Act 2003.  It is telling that there were much more severe crimes with which Chambers could and should have been charged (but wasn’t) had anyone actually taken him seriously. 

A second recent incident concerned Councillor Gareth Compton, who was incensed by the columnist Yasmin Alibhai-Brown’s statement that Western politicians had no moral right to object to the stoning of a woman in Iran.  Mr Compton tweeted that he wished someone would stone Alibhai-Brown to death instead.  He was promptly arrested for his trouble.   

Compton was released without charge, but it beggars belief that anyone would think he was actually advocating the act rather than making an attempt at sardonic humour.

Neither tweeter was particularly funny, still less Wodehousean.  But nor should they have attracted the attention of the police, any more than Wodehouse should have been pillared in public. Combating terrorism and maintaining community harmony requires acute judgement on the authorities’ part, and the ability to recognise real threats.  Equally it requires the ability to recognise blatant non-threats.  Retaining a sense of humour wouldn’t hurt in that regard.