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

- Adam Wagner, UK Human Rights Blog

Thursday, 25 November 2010

A Victorian Murder-Mystery: the strange case of Daniel M’Naghten

Published in the New Law Journal 3 December 2010, p 1688

To date the only British Prime Minister to have been assassinated is the unfortunate Sir Spencer Perceval (1762-1812), and his place as a regular answer in pub quizzes across the land is thereby assured. No doubt there have been many other attempts, and indeed the total number of failed attempts can never be known.

Continue reading at the above link or in my new book (see the homepage of this blog for details)

Tuesday, 23 November 2010

Abu Hamza's passport: be careful what you wish for

This article is to be published in Criminal Law & Justice Weekly (vol 174, 27 November 2010, p 249)

The radical Muslim cleric Abu Hamza has won his recent appeal against the attempt by British authorities to strip him of his passport. Having already lost his Egyptian nationality, he argued successfully that removing his British passport would render him stateless.

It seems rather incongruous that Hamza wanted a British passport at all, given his reported attitude towards the British state. He might remember the old adage about being careful what you wish for: the last person to engage in claiming a British passport then trying to bring about the downfall of the state was the rather colourful William Joyce, better known as the wartime traitor Lord Haw Haw.

Joyce was a member of several different British fascist political parties during the 1920s and 30s (they tended to splinter and reform in a manner similar to Monty Python’s Judean parties in Life of Brian). As war with Germany loomed, Joyce, fearing internment, applied successfully to renew his British passport in order to flee the country.

Upon arriving in Berlin he soon began broadcasting propaganda for Nazi radio. Throughout the war he taunted the British over the airways about the bombing of their cities and constantly urged them to surrender. In June 1945 he was captured and charged with three counts of High Treason.

There was one problem: Joyce was not actually British. He was born in America, of Irish descent. Two of the counts therefore fell away on the ground that as a foreign national he had not owed allegiance to the Crown.

Joyce was, however, convicted on the count relating to the period of his broadcasting in which he had held a valid British passport (which had lapsed in 1940). The courts reasoned that since he had enjoyed the protection that that document conferred, had used it to travel and could have used it in a neutral state, he owed reciprocal obligations to the Crown during the period of its validity, notwithstanding that he hadn’t strictly been entitled to it in the first place.

His conviction was not without controversy, but it is hard to see any moral objection. Joyce had deceived the British authorities into thinking he was a British citizen when it suited him. He should have realised that they might go along with that pretence when it suited them. He fully deserved to come unstuck on that one.

In the years since, Joyce’s apologists have suggested he was executed out of revenge, or prejudice against his Irish origins.

Revenge is a distasteful motive, although it is easy for those who did not live through the terror of the Blitz to say so. As to the second point, Joyce was an ardent unionist who claimed to have fled Ireland to escape assassination by the IRA, making him a curious candidate for martydom in the cause of Irish independence.

Once it had been established that Joyce owed allegiance to the Crown for a certain period, then it did not matter that his impugned acts had been committed outside the jurisdiction, in the light of a case from the previous war involving another famous traitor, Sir Roger Casement.

Casement’s history was if anything more colourful than Joyce’s. He had gained fame, and a knighthood, for exposing colonial depredations in Africa and South America. Upon returning to the UK, he aligned himself with the cause of Irish nationalism. During the Great War he attempted (without much success) to obtain material support from Germany for an Irish uprising. He was caught and charged with treason on his return to the UK.

Casement’s defence argued that all of his impugned acts had taken place on German soil. That was deemed irrelevant on the court’s interpretation of the Treason Act 1351, which defined treason as giving the King’s enemies “aid and comfort in the realm, or elsewhere”; “elsewhere” being defined as elsewhere than the jurisdiction.

That ruling was also not without controversy but, as with Joyce, the moral position seems clear, leaving aside the merits of Casement’s cause of Irish independence, the mitigation of his good work in Africa and the Americas, and the still unresolved “black diaries” controversy (wherein he was alleged to have been involved in what in modern terms would be called predatory sex tourism). Someone leaving the jurisdiction, plotting to overthrow the state and then returning should not expect the state to find itself powerless to respond.

Archbold 2010 notes that the law of treason seems to have fallen into disuse, with no prosecutions since Joyce’s time despite a number of apparently qualifying individuals. The authorities seem now to prefer other charges. The offence remains on the statute books, however, and if the likes of Hamza persist in their ways it might pay the CPS to reconsider its use. Nowadays inflammatory speech might find a defence based on Art 10 of the European Convention on Human Rights, but other treasonous activities such as raising funds to support Britain’s enemies would not.

Change of name

For the second time I feel compelled to change the name of the blog.  The first time came about because the original name no longer reflected what the blog was about.  This time the change is required because Halsbury's Law Exchange, with which I am involved professionally, has decided to revamp itself and call its blog "The Legal Soapbox".  Rather than complain I will defer to the site in which I have a professional rather than personal interest.  Besides, there was already a blog by the name of Legal Soapbox, though it closed down a couple of years ago. 

Not that any of this matters, in so far as I have never tried to advertise or otherwise attract traffic to this blog; it simply exists to record things I publish elsewhere.  That said, Mrs Crumbs and Pegs has been kind enough to provide a link, for which I am of course grateful, and I've no objection to anyone reading or commenting on any of the posts, which a few friends have done from time to time.

Monday, 15 November 2010

Magna Carta and the European Convention on Human Rights

In 2015 Magna Carta will be 800 years’ old. Moves to mark the occasion have already begun with a ceremony held on 12 November in the meadow that is called Runnymede, between Windsor and Staines.

The Guardian’s report of the ceremony calls the history of the Charter “bizarre”, refers to the European Convention on Human Rights (the Convention) as its “modern equivalent” and makes critical remarks about the present government’s commitment to the Convention, concluding “King John probably would have approved.” Some of the comments below the article also raise the chestnut of Britain’s lack of a written constitution.

In order properly to understand the place of the Convention and the British Constitution, it is necessary to understand something of the history of the Charter, which is not bizarre at all but rather goes to the very essence of the nation and is most assuredly something we need to preserve.

It is trite that the original purpose of the Charter was to divide power between King John and the barons in a manner more favourable to the latter. Equally obviously the Charter did not of itself create our modern constitutional arrangements: these evolved continuously from the Charter through (among many other things) de Montfort’s Parliament, Dr Bonham’s case, the Prohibitions del Roy, the Civil War, the Glorious Revolution and the various extensions of the franchise, as well as the rediscovery of classical authors who had been largely forgotten by the thirteenth century.

The concepts which evolved from all those events – including the separation of powers, the rule of law and the restraint of executive power – not only created the unwritten British Constitution, but also were the guiding hand behind many other national charters (the best known being that of the United States), and also the international documents drafted in the aftermath of the Second World War, of which the two most important were probably the Universal Declaration on Human Rights and the Convention itself.

Therein, however, lies the key point. It was that history, with which generations of English lawyers and politicians were infused, which created the idea and, more importantly, the practice of the rule of law and limitations on government power. It was not due to any single document, or a written constitution.

By the most acute contrast, many nations which do have beautifully written constitutions continue by and large to ignore them. Zimbabwe is a case in point. The recent reports of oppression of Christians in Pakistan sit in stark discomfort with the ringing declaration in Pakistan’s constitution which provides unambiguously for freedom of religion for all.

In recent times it seems to me that Britain has had a tendency to disdain its past and to downgrade and denigrate the teaching of history and public law accordingly. Doing so is not merely philistinism; it is undermining the very reason for the rights and freedoms we enjoy and so many other countries do not. To be sure, those rights are imperfect, and even precariously held; but to suggest that this country is anything less than one of the most free and most respectful of the rule of law by international and historic standards is ignorant at best and fatally damaging at worst.

In summary, it is our history, tradition and culture which is the best preservation of our liberties, and Magna Carta can properly be said to be an important event at the early stages of that history. The grand celebrations to mark its octocentenary are therefore appropriate.

Thursday, 11 November 2010

The Bribery Act 2010 - hoping against hope?

This article was published in the New Law Journal NLJ 2010 Vol 60, No 7441, p1572:

The Bribery Act 2010 received royal assent on 8 April. According to the Ministry of Justice, it will among other things “provide a more effective legal framework to combat bribery in the public or private sectors” and “help tackle the threat that bribery poses to economic progress and development around the world”.

It is fair to say that the old regime was a fractured state of affairs, and it is also fair to say that it didn't achieve very much. In 2007, for example, the US brought 69 cases relating to foreign bribery, Germany 43 and the UK none at all.

It can't be said, therefore, that there was no case for reform. If anything the surprise is the length of time reform has taken; it is not as if the previous government was reticent about altering the criminal law, in any other respect. The total number of pages in Halsbury's Statutes devoted to criminal law more than doubled between 1997 and 2010. That sort of increase is totally inconsistent with the rule of law, which requires, among other things, the law to be reasonably stable and knowable in advance.

Justified or not, it may be doubted whether the new Act will have the desired effect. The fact that the old law was in a slightly jaded state can scarcely be a complete explanation for the dearth of successful prosecutions. Perhaps the most famous, or rather infamous, case of a non-prosecution was the Al Yamamah investigation of the mid-2000s by the Serious Fraud Office (SFO).


Readers may recall that the investigation concerned the sale of Eurofighter jets to Saudi Arabia. The director of the SFO formed the view that there had been fraud, and began an investigation accordingly. All proceeded as normal until BAE Systems plc (the Eurofighter's manufacturer) said that to comply with a notice for disclosure would impair relations between Britain and Saudi Arabia. That initially did not suffice to prevent the investigation, but in short order the Saudis upped the stakes. They made quite clear that unless the investigation was halted two things would follow: first, the Eurofighter deal (and presumably any future weapons purchase) would be called off; and secondly, cooperation in the “war on terror” would cease. In case anyone didn't get the hint, the implications of the second threat were spelt out—British lives on British streets would be put at risk. And just to make sure the right people heard, they made those threats directly to No. 10 Downing Street (not being convinced of the constitutional arrangement of the independence of the prosecution process in Britain).

By means of a “Shawcross exercise” the Attorney General (who superintends the Director as with every other prosecutorial authority) had solicited the views of the cabinet in relation to the implications for foreign relations and, given the unambiguous threat emanating from Riyadh, ultimately concluded that it was not in the public interest to continue with the investigation, much less prosecute anyone.

That decision was the subject of well-known judicial review proceedings (R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] 4 All ER 927), but despite the Divisional Court railing against what it saw as an abominable interference with the rule of law, on appeal the House of Lords gave the complaints short shrift. Distasteful as it all was, their lordships held, the decision of the Director was not unlawful by traditional judicial review criteria, and therefore could not be interfered with by the courts. He had been entitled to take into account the public interest, in particular the threat to British lives, and indeed could have reached no other decision in the circumstances of the case (see John Cooper QC, “The Day We Sold the Rule of Law”, in Cases that Changed Our Lives, LexisNexis 2010).


One can look at the Al Yamamah affair from several different angles: a supine capitulation in the face of a foreign threat (that would presumably have set Lord Palmerston spinning in his grave), or a correct utilitarian balancing of the public interest. Or an outrageous selling out of the rule of law versus a proper exercise of the discretion which the prosecuting authorities have always correctly possessed. One thing, however, seems clear beyond argument: no matter what the state of the bribery laws, the Attorney General (or his subordinates) will exercise the discretion not to prosecute when they conclude it is not in the UK's interest to do so. And when British lives are at stake they will inevitably follow that course.

It would therefore pay to bear in mind that although the bribery laws may have changed—the “war on terror” continues unabated; the state of the nation's finances has become worse; we are still committed to a costly and protracted armed struggle in Afghanistan; our planned weapons procurement programmes are in a shaky state; which means the defence industry is as well; and we are as dependent on foreign oil as ever. In those circumstances it seems most improbable that nothing resembling the Al Yamamah deal will happen again and, if it does, that it will be treated any differently.

Wednesday, 10 November 2010

R v Chaytor and others

The Supreme Court has just announced that the appeals in R v Chaytor and others (reported below at [2010] All ER (D) 335 (Jul)) have been dismissed, with reasons to follow.

The appeals concerned MPs facing criminal charges arising out the expenses scandal, who sought to argue that the courts had no jurisdiction to try them. 

One recalls Lord Denning's famous quotation of Thomas Fuller (Gouriet v Union of Postal Workers [1977] 1 All ER 696 at 718): 

Be you never so high, the law is above you

Monday, 8 November 2010

Religion and the law once more: response to the Guardian

A shortened version of this article has been published here.

The Guardian’s legal blogger Afua Hirsch has posted on the subject of religion and the law, something I have written about on two previous occasions for Halsbury’s Law Exchange. It is worth returning to the subject to set something against what I believe are inconsistencies and misunderstandings in Ms Hirsch’s post.

Ms Hirsch first considers the remarks of the sentencing judge in the case of Roshonara Choudry, who had been convicted of the attempted murder of Stephen Timms MP. Ms Hirsch is angered by the judge’s comments that Timms’ own faith involved very different values from those of the defendant, and the judge’s suggestion of a “cosy” relationship between Christianity and the common law.

One might note that it ought not to be controversial to contrast the values of an innocent victim with those of an attempted murderer, and that it is undeniable that Christianity played an important role in the development of the common law (though not always for good, if one considers historic religious discrimination).

That said, the judge should not have made any comparison between the respective religious values of the defendant and victim, for the simple reason that it is irrelevant to the exercise of criminal sentencing. All that is relevant, aside from the circumstances of the offence itself, is the previous conduct of the defendant. In a country with freedom of religion this does not include her conduct in spiritual matters per se (pace Cherie Booth QC, who when sitting as a deputy judge controversially cited the apparently devout religious beliefs of a defendant as a mitigating factor). Membership or association with a group agitating for murder (religious or otherwise), on the other hand, would be an aggravating factor, as any previous conviction would be.

Equally, the victim’s beliefs or any other aspect of the victim’s life is also irrelevant, except for his conduct in relation to the specific offence – that is to say the usual criminal law considerations such as provocation. Even if he was a career criminal, unless one is to support vigilantism, that cannot provide mitigation much less exculpation of the defendant.

Next Ms Hirsch attempts to link the case with “a series of incidents that have appeared to pitch religious communities against the courts”. She offers two examples: (i) that of Gary MacFarlane, a registrar dismissed for refusing on religious grounds to conduct same-sex civil ceremonies, and (ii) that of George Bathurst-Norman, a judge recently disciplined for making comments about Israeli actions in Gaza during the trial of activists alleged to have damaged an armaments factory which had supplied weapons to Israel, something she says will have offended “pro-Israeli Jewish people”.

I have already blogged on the MacFarlane case, and won’t repeat anything save to observe that the relationship with the Timms case is slim.

As to the Bathurst-Norman incident, Ms Hirsch is wrong to suggest it would only have been pro-Israeli Jewish people who objected to his comments. A free society is founded on the principle of freedom under law. The protestors had the right to demonstrate outside the factory. They had any number of options to exercise their freedom of speech to denounce the factory and the Israeli government. They could petition their MPs, and Parliament in general. They could agitate for a change in the law to ban weapons exports. They could openly denounce Judaism and urge its members to convert or abandon the faith. But their own view of the conflict in the Middle East could make – or rather should have made – no difference to their liability for criminal damage. It might be relevant as a mitigating factor in sentencing, in so far as they could be said to be idealistic campaigners rather than wanton vandals or career criminals (though not in so far as the judge happened to agree with their political stance), but it should have been irrelevant to the issue of liability.

Ms Hirsch’s grapeshot approach continues:

"But if religious communities are to have specialist courts, as Lord Carey would want, what about minority-ethnic communities – badly under-represented in the judiciary – women and other groups affected by the various strands of discrimination? Either the legal system is premised on the notion that the court system can function fairly for all, or it ceases to function at all."

“Various strands of discrimination” is a controversial way of putting the judiciary’s lack of diversity, although I agree with her second sentence. It is worth adding something in relation to Sharia courts, which Ms Hirsch mentions at the end of her article, and indeed the Beth Din as referred to by some of the comments below her article.

Separate religious law is something completely inconsistent with the separation of church and state equality before the law. The Beth Din, however – and any Sharia equivalent – is not an example of separate religious law, and this is a common and serious misunderstanding. The Beth Din is not set up or funded by the British state, and its rulings, to the extent they are inconsistent with British law, are of no legal effect. It is in fact an illustration of the English law principle of freedom of contract. Any contract – including one providing for arbitration or other form of alternative dispute resolution – will be enforced by the courts so long as it meets domestic law requirements for a valid contract, including public policy. Thus if two people conclude a contract providing for Jewish law, or some foreign law, or even a previously unheard of set of rules the parties had devised themselves, the courts will do their best to interpret and uphold that contract. To do so involves no importation of the foreign or religious laws; it is simply applying the domestic principle of freedom of contract. So too with the recognition of foreign marriages.

One important caveat remains, however: if a religious system involves principles which would be unlawful here, such as discrimination against women, then the courts will be careful before deciding that the party discriminated against would have freely agreed to subject their dispute to the religious court, and indeed whether to recognise the ruling either way, having regard to public policy. That might be viewed by some as unfair discrimination against the religious group. By others it might be seen as protecting the rights of those discriminated against by that religious group.

The boundaries of recognising controversial or even unlawful practices in the name of freedom of religion, freedom of expression and freedom of contract forms one of the central disputes in liberal philosophy. For rather different reasons, and with rather different solutions, I would agree with Ms Hirsch that this debate isn’t going to go away or become any less heated any time soon.

Friday, 5 November 2010

Assisted Suicide again

I have co-written an article on the above with Lynne Townley which has been published in Criminal Law & Justice Weekly, vol 174 (6 November 2010) p 695.

Monday, 1 November 2010

Still more on religion and the law

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

In previous blogs on religion and the law, I have advocated the following classical liberal position (for which I claim no originality):

"[T]he 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."

Adopting that straightforward principle would, among other things: not discriminate against any religion, not suppress any religion, give primacy to freedom of expression and the right not to be discriminated against, preclude discrimination in employment and save Byzantine arguments about how to define a religion.

Inevitably, however, a few grey areas remain. If a job is one in a religious institution then it would make little sense to preclude discrimination by the employer on religious grounds. A further problem was highlighted recently by a Christian couple who wished to become foster parents. They were open about the fact that their religious teachings shunned homosexuality. This apparently precluded them from passing the local authority's requirements since those banned any discrimination on the ground of sexual orientation. The couple plans to challenge the decision by way of judicial review in the High Court.

Here the approach I advocated above does not provide a simple answer. Assessing the suitability of people as foster parents is not like a normal job application. Presumably the authority would defend its position on grounds that homosexuality has long been legal in this country, and popular opinion has long moved away from discrimination on the ground of sexual orientation.

Yet there is a serious problem in the authority effectively becoming thought police. Discrimination on sexual grounds based on religion is hardly the only view considered obsolete or otherwise objectionable. Is there to be a spectrum of required political, social and religious views? What if, as the couple in this case appear to be, the candidates seem to be otherwise blameless good citizens? The number of views generally considered objectionable is limited only by the imagination. For example, how would the authority propose to deal with the following:

· Gay people who have openly disparaged practising Christians;

· Adherents of any particular religion who openly disparage non-believers;

· Adherents of any particular religion who openly discriminate against women in various respects;

· Representatives of any internecine ethnic, religious or territorial conflict anywhere in the world who have advocated aiding or abetting combatants,

Any of the above may be encouraging views that are unlawfully discriminatory at the least.

One point is that objectionable or controversial views of parents would not normally render parents unsuitable to the point where social services would be able to intervene and remove the children. That cannot be a complete answer, however, since the test to remove children has never been the same as the test to allow foster parenting and arguably should not be.

The answer, I suggest with a degree of diffidence, has to be that since people are entitled to freedom of worship in the private sphere, and freedom of expression generally, that there is no getting around the fact that parents of every kidney, be they natural, adoptive or foster, are bound to expose children to views which the majority would find unsavoury to say the least. The children will however have to be educated at a state-approved school and via that method at least ought to be made aware of discrimination and the law. Whilst there would be some cases where a parent’s views would be so harmful so as to justify precluding them from fostering children, there has to be a fairly wide mesh.

One parting shot though – the classical liberal view I have been arguing for may well preclude religious schools, on the ground that the state is responsible for education at a primary and tertiary level and is required under the liberal approach to be neutral towards religion. This would be a dramatic change for the United Kingdom, but I would suggest that observers of the Northern Irish troubles for a start would see some empirical justification. But that is an issue for a separate post – indeed many posts.

Post Script: The following comment by one SJH and my response appear below the article on HLE:

Nov 1st, 2010 :

While this does not appear to be an attack on Christianity, the local authority is implying that one viewpoint is correct and the other is wrong, ie Christian views are outdated and must be abandoned. Homosexuality must be accepted by all. To not accept it is prejudice. Let’s say for a moment that the state decided to take the other view: Christianity is correct and homosexuality is wrong – therefore, we shall not allow gay couples to adopt or foster children. Would people also be expected to accept this? The UK is now multi-cultural and we are constantly told to accept a ‘diverse Britain’ – that’s all fine but what does this mean? Will some people have to give up their own opinions and beliefs to make way for new ones coming through? While it’s important that society grows and develops, why must a person be forced to adopt a view or live a way which goes against their beliefs? As for the children – they will grow, change and will be able to form their own opinions. Or maybe by the time these children grow up society will have a whole new set of ‘guidelines’ for us which will discriminate against a whole new set of people, while they desperately attempt to be ‘politically correct’. Discrimination laws are changing and will start to clash – the question is: who will be deciding what is essentially right and what is wrong?

My Response:

The point I was making was that assessing parents for fostering children isn’t really akin to an employment application. In an employment situation, as long as one does what one is contracted to, then one’s private life is no-one’s concern, unless they do something in public outside of the workplace that brings the employer into disrepute.

With potential foster parents, a rather more searching and personal assessment would be appropriate. But does this extend to their political and religious views? Without ruling it out completely (suppose the prospective parents spent their time exercising their right to freedom of expression by calling for ethnic cleansing of some form or another and attempting to form a modern vision of the long defunct British Fascisti), surely the permissible spectrum of views has to be wide indeed. There are any number of reasons for this, including that what the authority thinks is politically correct is likely to change over time, as you point out, and the fact that, like it or not, most people have any number of likes and dislikes, rational and irrational, that might irk some local authority functionary but does not render them unsuitable parents. The children, as you say, will gain their own views over time anyway.

Which brings one to the central question in this particular issue – the needs of the child, which (correctly) in law is the overriding question. In assessing whether it is in the interests of the child to be fostered by any particular household, the parents’ religious and political views are but one factor, and surely absent something fairly extreme not a decisive factor either. Except of course everyone agrees on fairness until it comes to defining it, and similiarly we can all agree on a wide spectrum of views until something is offered as being outside it.

James Wilson Nov 2nd, 2010 :