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Wednesday, 20 July 2011

"... the greatest piece of judicial law reform in my time ..."

Published in the New Law Journal, Vol 161, 17 June 2011, p 854  lawbites
Lord Denning is perhaps the most famous twentieth century English judge. His fame derives from several sources: partly from the number of high profile cases on which he sat; partly from his preference for justice as he saw it over precedent; and partly due to his inquiry into the Profumo affair, which, he later recalled, produced his one and only best seller. (It was also known as the "raciest Blue Book ever", though presumably not in the face of much competition.)

Perhaps uniquely amongst common law judges, Denning is also famous because of his judgment-writing style. It certainly endeared him to generations of law students, though not all law teachers: a curmudgeonly sort at my alma mater used to sneer at Denning's "short sentences and simplistic reasoning".

Still, Denning's judgments could never be accused of lacking clarity, and his unarguably short sentences could be crafted with such skill that his judgments on occasion attained the status of works of literature, as any reader of Miller v Jackson [1977] 3 All ER 338 will attest.

Born in 1899, and a veteran of the Great War, Denning displayed the values of his generation more than once, but he could also be forward-looking, perhaps most notably when ruling on the right of a deserted wife to remain in the matrimonial home. His judgments in the fields of property and contract were less well known publicly, but equally controversial in the legal profession: another professor of mine once suggested Denning “never met a plaintiff he didn’t like” (presumably Mrs Miller excepted).

Somewhat surprisingly, however, what Denning called "the greatest piece of judicial law reform in my time" did not arise from casting aside the patriarchal shackles of outdated social mores. It did not even concern substantive law. Instead, it was the creation of the pre-trial remedy of the Mareva injunction, by which assets in the jurisdiction can be frozen before trial in order to prevent unscrupulous defendants from removing them and thereby rendering any litigation fruitless.

The origins of the remedy are found in Nippon Yusen Kaisha v Karageorgis and anor [1975] 3 All ER 282, a case heard a month before Mareva.

Recently Lord Neuberger complained, with some justification, about the length of modern judgments. He would certainly have had a point in comparison with the Nippon Yusen Kaisha case – the lead judgment was all of four paragraphs long. Denning observed that it “has never been the practice of the English courts to seize assets of a defendant in advance of judgment, or to restrain the disposal of them. ... We know, of course, that the practice on the continent of Europe is different.” He then opined that it was time to revise that practice, and went on to grant the order, pointing out that if the defendants had grounds to object they could always apply to discharge it.

It was considered afterwards that the judgment might be defective, since the court had not been referred to Lister v Stubbs [1886–90] All ER Rep 797, where it had been stated that there was no jurisdiction to grant such an injunction. Thus, on 23 June 1975, Mareva Compania Naviera SA applied for similar relief to Nippon Yusen Kaisha, and addressed the Lister v Stubbs point directly.

On that occasion the judgment ran to all of three pages. Denning dealt with the Lister point breezily. He referred to s 45 of the Supreme Court of Judicature (Consolidation) Act 1925, which provided that an injunction could be granted “in all cases in which it shall appear to the Court to be just or convenient …”, and pointed out that its predecessor section had been given a very wide interpretation in Beddow v Beddow (1878) 9 Ch D 89. As it was just and reasonable to grant the injunction, Denning did so.

Roskill LJ agreed that the remedy was justified. As to the legal novelty, he pointed out that the charterers could always apply to the court to discharge the injunction, and referred almost sheepishly to the terms of the charter as providing a means of distinguishing Lister v Stubbs “if necessary”. Ormrod LJ concurred but declined to write a separate judgment as the application was ex parte.

It has to be said that the grounds for distinguishing Lister seem rather shaky. But the commercial justifications were unanswerable, and the point was never appealed further. Instead Mareva injunctions became standard practice, and a few years later Parliament codified the practice in the Supreme Court Act 1981 (see Paul Lowenstein QC “As if by a side-wind ...” in Cases that Changed Our Lives, Lexisnexis 2010). The jurisdiction was subsequently extended to include orders of worldwide application, and even cases where there is no substantive claim in England. Renamed “freezing order” in CPR newspeak, the remedy continues to form a substantial part of the business of the Commercial Court.

Denning, aged 75 at the time, took advantage of the absence of any mandatory retirement date and continued to sit until the early 1980s. He died in March 1999 aged 100.

Counsel for Mareva, Bernard Rix, is now Rix LJ and a resident of Denning’s old haunt of the Court of Appeal. One imagines that the number of times he has had occasion to recall that day in June 1975 over the course of a long and distinguished career in commercial litigation must be very considerable indeed.

Friday, 15 July 2011

R (on the application of Bashir) v Independent Adjudicator: religion in prison

Co-written with Anne-Marie Forker, and published in Criminal Law & Justice Weekly, Vol 175, 18 June 2011, p 373

The relationship between religion and the law seems now to be a permanent feature of public life in the United Kingdom – to the point where it reminds one of the children’s story about the magic pudding which, no matter how often it is eaten, always reforms in order to be eaten again.

One recent serving of the pudding concerns the right to practice religion in prison, which was the subject of R (Bashir) v Independent Adjudicator [2011] EWHC 1108 (Admin).

The facts

The claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis for the test was a suspicion that he had taken controlled substances. He was offered water before providing the sample, but refused on the ground that he was a devout Muslim who was fasting prior to a court hearing, as part of his religious preparation for the event. As a result of refusing water he was unable to provide a sufficient sample. He was charged with failing to obey a lawful rule contrary to r 51(22) of the Prison Rules 1999. He was convicted by a prison adjudicator and a penalty of 14 days’ additional detention was imposed. The adjudicator held that the claimant was not fasting as part of either Ramadan or any other religious festival, and therefore requiring him to provide a sample had been “appropriate”. The claimant applied by way of judicial review to quash the adjudicator’s decision, contending that it breached his right to practice his religion under art 9 of the European Convention on Human Rights.

The High Court

Judge Pelling found that the adjudicator’s approach to art 9 had been wrong; the correct approach required three questions: (i) whether the claimant’s rights under art 9 were engaged; (ii) if so, whether there had been an interference with those rights; and (iii) if so, whether the interference was one that was both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There was no real dispute both that art 9 was engaged and that there had been an interference with those rights. Accordingly question (iii) formed the nub of the substantive challenge. Moreover, since the drug testing was prescribed by law and at least one of the other aspects of art 9, the only aspect of (iii) that was in issue was whether it was proportionate to the end pursued.

Judge Pelling concluded that there had been no evidence before the adjudicator to suggest that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required for the purposes of providing a sample regardless of the circumstances. The decision therefore had to be quashed.


We have no dispute with the judge’s approach to art 9. Rather, our difference is with the conclusion that the drug policy could potentially be a disproportionate interference with the claimant’s rights. While the state is obliged to allow religious beliefs and practices, it is not obliged to make exceptions to the general law based on someone's religious beliefs – provided, of course, that the general law is not aimed at discriminating against or suppressing particular religions.

If it could have made no difference either to the state or to any private individual (including other prisoners), then we would have no objection to the state accommodating religious practices for prisoners. But making exceptions to the disciplinary regime – of which drug testing is at the core – is as unworkable as it is unfair. If one has an exception due to a fast, then why not some other activity? And, to ensure non-discrimination, non-religious beliefs of any particular prisoner would also have to be accommodated.

Religious exemptions are found elsewhere in the criminal law, such as s 139 of the Criminal Justice Act 1988 and ss 3 and 4 of the Offensive Weapons Act 1996, which allow Sikhs to carry the Kirpan on religious grounds. Is permitting this not increasing the likelihood of harm to others, something the criminal law aims to reduce? We are not suggesting for a moment that Sikhs are more likely than other groups to use knives in a criminal fashion, but rather that increasing the quantity of knives being carried by any section of society in the general public increases the risk of harm to others. Practicing religion should be subject to the same standards as non-religious activities (see also p 124 ante).

Contrary to the tabloid view that equality is somehow harmful to religion, we believe that excluding religion from public life is actually the best protection for religion, because it ensures all religions are treated equally.

Wednesday, 6 July 2011

Free Speech: American and British perspectives

For Halsbury's Law Exchange

This Thursday Politeia is hosting an evening on the different approaches to Freedom of Speech in the United Kingdom and United States. It is a particularly topical subject, needless to say, in the year of the superinjunction. Here are a few thoughts on the differences between legal approaches in the two countries, on which I freely stand to be corrected if my knowledge of American law proves as deficient as I suspect.

Both the UK and the US have a strong – and interwoven – history of free speech. As a concept in political philosophy, arguments for free speech that are strikingly modern in content can be found in Milton’s Areopagitica, and later in the famous harm principle of Mill’s On Liberty. As a legal concept, however, free speech developed primarily in the United States in the twentieth century, pursuant to the explicit protection of the First Amendment to the Constitution.

Nowadays, an equivalent jurisprudence is being developed by the European Court of Human Rights and the domestic courts of member states under art 10 of the European Convention on Human Rights (the Convention). There is, however, a significant difference in the wording of the American and European constitutional documents. The First Amendment is in these apparently unqualified terms:

Congress shall make no law abridging freedom of speech ...

Even the Ten Commandments would struggle to compete with that lack of ambiguity. A moment’s reflection, however, shows that it would be impossible to comply with the First Amendment literally: “no law” abridging freedom of speech would mean no law preserving state secrets, no copyright protection and no confidentiality for medical records, for a start. Equally it would mean allowing the most outlandish libel and slander, wildly misleading advertising, and so on and so forth – to the point where no law abridging freedom of speech would effectively mean no law at all.

The American courts have therefore had to permit many an abridgement to free speech over the years. In doing so, they have attempted to fashion principled exceptions, whilst at least paying lip service to the uncompromising nature of the First Amendment. Often this involves reclassifying something as “not speech”, or conversely permitting something controversial such as pornography on the ground that it is “speech” even though for the most part no-one might be saying anything.

By contrast, art 10 of the Convention starts with a declaration of the right to free expression, but then adds that the exercise of that right may be subject to such restrictions as are:

prescribed by law and are necessary in a democratic society ...

Thus, while any form of speech automatically engages the protection of art 10, the protection might be withdrawn if the infringement under question meets the qualifying criteria – but only to the extent that it does.

In the UK additional weight is given by s 12 of the Human Rights Act 1998, which provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered.

The different wording of the First Amendment and the Constitution is accordingly more apparent than real: the Convention effectively codifies the same approach that the US courts are compelled to take by the impossibility of literal First Amendment compliance: allowing restrictions, but only where lawful, necessary and proportionate.

Nevertheless, it is fair to say that protection of speech has tended to be been stronger in the United States.

There are at least three interrelated reasons. First, since the American courts are effectively compelled to undertake a form of rhetorical trickery - or even intellectual dishonesty - to proscribe speech given the bluntness of the First Amendment, they tend to be very reluctant to do so.

Secondly, and much more importantly, the First Amendment has long been central to American political debate and American culture generally, in a fashion that does not really find any equivalent in Europe (save arguably for the Dutch culture of tolerance). Knowledge and indeed reverence of the First Amendment is far greater in the US than knowledge of art 10 in Europe.

Thirdly, under the Convention, European courts are required to balance art 10 with other Convention rights, such as the right to privacy. The Convention does not give priority to art 10 over those other rights; the courts are required to afford them equal weight. In America that argument would be much harder to advance.

One can see any number of recent manifestations of the different approaches, such as the respective cases on soldier’s funeral protests; Tiger Woods’ unremitting media coverage versus the British footballing superinjunctors; and the fortunes of Pastor Terry Jones.

It is difficult to summarise, let alone add to the daunting volume of philosophical works by American jurists who have considered the concept of free speech, from robust proponents such as Ronald Dworkin to the more sceptical such as Stanley Fish.

For my money one of the most compelling arguments in favour of the American approach is the analogy advanced by Judge Richard Posner with America’s cold war strategy. The front line against the USSR, he observes, was not the Potomac but the borders of Western and Eastern Europe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often violent, sadistic, sordid or nonsensical manifestations of speech, as with Hustler’s article or the funeral protests. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

When deciding what is or what is not a proportionate interference with art 10, the European Courts might consider a similar perspective.