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

- Adam Wagner, UK Human Rights Blog

Thursday, 28 October 2010

Tuesday, 26 October 2010

The shrinking of Fleet Street

A piece written for Lexisweb.

The Fleet Street hack is a long tradition, which may properly be called noble despite its share of ignoble practitioners and conventions. For any number of years journalists have been filling press benches at the courts, column inches in the dailies and glasses in the pubs, as they chronicle the drama, misery and human frailties that every piece of litigation evokes in one form or another.
Unfortunately it seems that that tradition is under threat, according to David Banks in last Tuesday’s Guardian. Mr Banks warns that with fewer local courts to sustain local journalists and, more worryingly, the preference of modern editors for “churnalism” – by which I imagine Mr Banks is referring to the bland non-news produced by the many blood relatives of Private Eye’s Phil Space – the days of reporters sitting patiently through the many boring days and boring cases to find the gems of public interest are fast diminishing.
There are many grounds for concern about this trend. One recalls Lord Hewart’s famous dictum that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. This is the cornerstone of English justice. It is reflected in the rules regarding open courts, the few exceptions to which are always the subject of robust debate. It is the means by which judges – unelected law makers who wield great power – are kept in democratic check. Indeed, it has long been observed that judges are the only public servants who make every single decision in public.
Yet only the tiniest proportion of the general public has the time and the inclination to sit in court observing cases. Almost all who do are only there because they have an interest in the outcome. The rest rely, naturally enough, on the media to inform them of what happens in the courts. It follows that the role of the journalist is one of the highest public importance. Fewer journalists means fewer reports which means a weakening of that vital role.
It is true that not all of what journalists publish about court proceedings concerns important legal developments; they of course want the drama, the gossip and the sleaze. But that cannot detract from the importance of legal journalists. For a start, it is not necessarily a bad thing that anyone who attends court has to accept that they are going to be the object of public scrutiny, whether in respect of trivial matters or otherwise: the market will ultimately decide what the public wants and therefore what the journalists choose to publish. Secondly, and more importantly, the mere presence of a journalist in court ensures a form of watchdog for anything untoward that might happen during the proceedings. Judges who fall asleep, counsel who lose their temper, jurors who behave improperly or any other examples of human failings will quickly supplant the worthless gossip in the journalists’ attention, and be brought to book in the court of public opinion accordingly.
Some countries tightly control the press when it comes to court procedures (usually so they may also control the outcome of the procedures). Others may not have any legal impediments but, due to lack of resources and an equivalent press tradition, have proportionately fewer journalists than this country. None may be envied in this respect. We should be careful in Britain before knocking the fourth estate, however irresponsible it might be on occasion.
I have long been of the opinion that all proceedings in open court should be recorded on video and accessible via the internet, as a means of ensuring open justice. This would partially alleviate the problems caused by diminishing press interest, but that is an argument for another day.
There is a final point, and it is one on which I have to declare a professional interest. The role of reporting law is not that of those variously described as journalists, hacks or court reporters, but of proper law reporters, a different beast altogether. These are lawyers (in the case of the All England Reporter, all qualified barristers and solicitors) employed by legal service providers, who also attend court and report proceedings. In contrast to journalists, however, law reporters are only interested in reporting law and procedure, for online and hard copy law reports rather than newspapers, journals or magazines. They, therefore, are the source of public information about how the law develops. Their role does not overlap or detract from that of the journalists. Their readers are all lawyers or similar professionals, but that is unsurprising and unobjectionable. Law is, after all, a learned profession, as with medicine or any other, and it is only professionals who are in a position properly to understand most developments in precedent – which is not to say that no legal rulings are ever appropriately reported and discussed by the press and public, just that the majority of the output of the courts of record will inevitably only be read by lawyers.
I am pleased to be able to report that law reporters in the form of the All England Reporter are in no danger of diminishing. I am less pleased to have to reiterate that this does not detract from concerns about the declining number of court reporters.

Friday, 15 October 2010

Of courts and quangos

For Halsbury's Law Exchange

At the end of September I blogged about the extraordinary inclusion of the Supreme Court in a list of “quangos” whose future was being considered as part of a general cost-cutting exercise by Central Government.

The list was a leaked document obtained by the BBC and reported widely on its website and by other media. Now the final list has been made public here, and there is no mention of the court at all.

It is therefore a relief to be able to report that the highest court in the land is not considered of a piece with the Government Hospitality Advisory Committee on the Purchase of Wines and other such entities.

Wednesday, 13 October 2010

Assisted suicide again

A short note for HLE's Law in the Headlines. Lynne and I are due to be published in Criminal Law and Justice Weekly on the subject soon

This week the Independent Newspaper reported a further development in the ongoing debate about assisted suicide. It stated:

Doctors and nurses who support assisted suicide for the terminally ill will launch a campaign tomorrow to change the law on the right to die.

Healthcare Professionals for Change (HPC), a group of doctors, nurses and allied health professionals, aims to challenge the views of bodies such as the British Medical Association (BMA) and the Royal College of Physicians (RCP) which oppose such a move.

It is the first professional body to be set up with the explicit aim of changing the 1961 Suicide Act.

Dr Ann McPherson, who is dying of pancreatic cancer, said many doctors believed that patients "should not have to suffer against their wishes at the end of life".

The group's founder went on: "By taking a hostile approach to a change in the law on assisted dying, medical bodies such as the BMA and the Royal College of Physicians are failing to adequately reflect the views of all their members.

"Alongside access to good-quality end-of-life care, we believe that terminally-ill, mentally-competent patients should be able to choose an assisted death, subject to safeguards."

Sarah Wootton, chief executive of Dignity in Dying which backs the group, said: "It's a real move forward.

The issue of assisted suicide is the subject of one of Halsbury’s Law Exchange’s current projects. It has been noted several times as Law in the Headlines (see here for example), and the present instance is unlikely to be the last. Dr McPherson states that medical bodies are “failing to adequately (sic) reflect the views of all their members”, and yet given that there will be diametrically opposing views amongst those members, that is not a criticism that can ever be answered.

The existing state of the law is reviewed by Lynne Townley in the LexisNexis publication Cases that Changed Our Lives (2010), and will be considered further in a forthcoming HLE white paper. The latter will not be short of material.

Friday, 8 October 2010

Religion and the law once more: recognising Druidry

Written for Halsbury's Law Exchange and published here

On 2 October the BBC reported that Druidry is to be recognised as an official religion by the Charities’ Commission. This status has legal implications, in particular for tax purposes. Not all have been happy with the news. In the Daily Mail the conservative commentator Melanie Phillips wrote:

Elevating them to the same status as Christianity is but the latest example of how the bedrock creed of this country is being undermined. More than that, it is an attack upon the very concept of religion itself.

Whether one agrees or not, the report raises once more the issue of religion in public life, unquestionably one of the more intractable problems destined to remain a feature of public debate in this country.

Previously, of course, Christianity ruled the roost as the state religion, as Ms Phillips infers, although as a Jew she might be more cautious about wishing for a return to the past. Mediaeval Christian England severely oppressed Jews before expelling them altogether in 1290 under Edward I by an edict not overturned until 1656. The right to naturalise was not given to Jews until the early 19th century and they were not eligible to sit in the House of Commons until 1859. Ms Phillips has also previously written that the Judeo-Christian theology was responsible for modern ethics and the methods of scientific inquiry, although both claims might have come as a surprise to the ancient Greeks.

Back to the present day, where despite the continuing presence of an established church, the state has attempted to be inclusive of all religions and to recognise them at law accordingly. Two problems exist with that approach: first, how to define “religion”, and secondly, how to reconcile beliefs incompatible with each other and, more importantly, incompatible with the law.

Manifestations of those problems have formed many a headline story, from the dramatic in the form of the Satanic Verses controversy of the late 1980s or the more recent Danish cartoon furore, to the alleged wishes of a schoolgirl to wear a particular item of clothing, employees wishing to be exempt from certain duties, and business owners wishing to exclude their services from certain sections of the public.

Liberal philosophers have long had the following answer: there is no way of the state satisfactorily defining a “religion” (witness the somewhat tortuous efforts of Burton J to do so in Nicholson v Grainger plc [2009] All ER (D) 59 (Nov)). Instead the state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples.

Such an approach should not worry any religious believer; quite the opposite. The United States has a constitutional separation of church and state, as well as freedom of speech, and yet has a higher level of religious observance than the United Kingdom. By contrast, certain theocratic states elsewhere in the world protect only one religion, and not much in the way of freedom of speech or other human rights either.

Tuesday, 5 October 2010

BBC v The Stig again

Published on Halsbury's Law Exchange here.

Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.

As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.

Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.

In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.

As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.

Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.

Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.

Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.

Update: the UK Human Rights Blog has responded to this post here.

Monday, 4 October 2010

Cases that Changed Our Lives again

A note on the book (which is available for purchase here) from a US perspective.

Cases that Changed Our Lives is a new publication by LexisNexis. It consists of 24 essays on great cases in the common law, from the United Kingdom, the United States and Australia, together with a preface by leading counsel for LexisNexis International and a foreword by Lord Neuberger MR, one of the United Kingdom’s most senior judges.

All lawyers have an inbuilt need to revisit the past. After all, that is the basis upon which common law is founded. The purpose behind this book is to revisit some of the great cases of the common law’s history, and to cast a fresh eye on the reasoning behind those cases and the legacy each has left on the common law. In this way it forms part of LexisNexis’ commitment to supporting the rule of law, one fundamental aspect of which is open and robust debate about the rules which govern our lives. The book is being launched at the International Bar Association Conference in Vancouver in October 2010.

As well as the questions of high legal principle, the book also reflects on some of the human stories behind the litigation. Sometimes great cases have involved great statesmen. Equally often, however, momentous legal rulings have arisen from the dealings of people whose lives were otherwise lived in complete obscurity. Others may have been famous once but have long since vanished from the public imagination.

The book was compiled in the UK, and the majority of the essays are English cases. Two cases are included from the United States. Kenneth R Thompson II, Global Chief Legal Officer for LexisNexis, has written on the constitutional milestone of Marbury v Madison. Henry Z Horbaczewski, General Counsel of Reed Elsevier, has written about the notorious Plessy v Ferguson, a case well known for the famous dissent of Justice Harlan and equally well known for the infamous decision of the majority.

The relevance of the book to American lawyers, academics and indeed anyone interested in political affairs goes well beyond those two cases, however, for two primary reasons.

First, several of the English cases had a great influence on the development of American law. Dr Bonham’s case in 1610, the subject of the first essay, was decided by Sir Edward Coke, a jurist widely read and respected amongst American lawyers of the day. The decision continued to be cited in American courts years after independence. Ironically, Coke’s central holding in the case – concerning the ability of the courts to strike down legislation – was clearly echoed in the United States in Marbury v Madison (and often cited in its antecedents), even though it came to be disowned by Coke’s successors on the English bench. And the second case in the book, the trial of Dr Sacheverell, gave rise to the “Riot Act” which was replicated on numerous occasions in the United States in the years after (as well as being a common expression in popular culture to the present day).

Secondly, and perhaps more importantly, the discussion of the cases shows legal reasoning in action, something of universal interest to lawyers from the common law tradition. Each case reveals an attempt to resolve some of the most difficult moral issues. For example, the legendary case of cannibalism on the high seas, R v Dudley & Stephens, where shipwrecked sailors resorted to killing and eating the innocent cabin boy (only to find themselves rescued and charged with murder), was the inspiration for a famous essay by the great American legal scholar Lon Fuller (“The Case of the Speluncean Explorers”, Harvard Law Review, Vol. 62, No. 4, February 1949, p 616). It remains good law to this day in England and Wales for the proposition that necessity is no defence to murder, but the moral dilemma it raised is just as acute today as in the very different world of Victorian England.

The equally tragic and much more recent cases of Diane Pretty and Debbie Purdie concerned the issue of whether assisted suicide should be legalised, thus granting each of the women (both of whom had contracted terminal illnesses) the right to die in circumstances of their own choosing. The magnitude of the moral issues needs no elaboration.

In chapter VI we consider the United Kingdom’s response to terrorism in the twenty-first century – which was of course initially in response to the appalling act of terrorism on United States’ soil in September 2001. The classic fundamentals of freedom under law – the right to habeas corpus, to know the case against oneself, to proceedings in open court – have all come under scrutiny and indeed some strain as the state has tried to deal with the evasive threat of terrorism. In particular, how does society apply apparently fundamental rights to someone strongly suspected of being a potential mass murderer, but who hasn’t in fact yet committed any crime? Is it really better, as the old legal saying goes, for ten guilty men to go free than one innocent to be wrongly imprisoned, if one or more of the ten guilty men then proceeds to engineer a terrorist attack on thousands?

With respect to each case readers will no doubt contrast the British decisions with those of leading United States’ courts. They might find particular interest in the fortunes of the supermodel Naomi Campbell, who fought to silence what she considered an invasion of her privacy by a tabloid newspaper. The newspaper, spoiling for a fight, quickly fashioned itself as the champion of press freedom. The subsequent legal battles as set out in the essay bring to mind the differing fortunes of the late Rev Jerry Falwell in the United States during his legal clash with the publishers of Hustler magazine.

Other issues covered, including property rights as between married and unmarried couples, the right of children to consent to medical treatment, land law, freezing injunctions, liability in tort and the duty of the state to protect the lives of those in custody, will all resonate with American readers.

American constitutional lawyers might also read with interest the influence of the European Union, begun as an economic arrangement but steadily (and inexorably?) marching in the direction of a federation, on English law. And they will need no introduction to the subject matter of the two Australian cases – indigenous rights and constitutional freedom of speech.

It was inevitable that whatever list of cases we devised would be controversial. Equally, some will object that there were more logical groupings for the chapters. We expect – and welcome the fact – that they will do so. Our response to such anticipated criticism is threefold. First, no-one is ever going to agree on the final list, not for a book of manageable proportions anyway.

Secondly, there is always volume II! (and possibly III, IV, and beyond ...).

Finally, if by making the “wrong” choices we have at least managed to provoke debate about the relative importance of famous cases and therefore the workings of the law, then we will have achieved what we set out to do.