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

- Adam Wagner, UK Human Rights Blog

Wednesday, 31 October 2012

The Italian seismologists: prosecution by yearning

I have often maintained (without a claim to originality) that one can tell a great deal about any particular society by two things: first, the way in which it classifies people as criminals, and secondly, how it chooses to punish them. A good illustration comes with the recent news about six Italian scientists and a government official being imprisoned for failing to give adequate warning of an earthquake that killed more than 300 people in L'Aquila in 2009.

The news report states:

“The seven, all members of a body called the National Commission for the Forecast and Prevention of Major Risks, were accused of negligence and malpractice in evaluating the danger and keeping the central city informed of the risks.”

It is hard to know where to begin, assuming the report to be accurate. We need to look very carefully at any particular criminal offence to examine what it is supposed to achieve. Is it to ban something which is plainly a breach of someone else’s rights, however framed, such as assault or other crimes against the person? Is it to protect the environment or stop some other more general but clearly identifiable harm? Is it to do with public morality? Or is it simply trying to find a scapegoat to make everyone feel better; a type of “prosecution-by-yearning”?

One good example of the last kind was the arrest of the paparazzi who had been trying to photograph Princess Diana on the night of her death. The paparazzi then and now are often not very admirable people, but the fact that they were trying to take a photograph was not an excuse for Princess Diana’s chauffeur to drive recklessly – as indeed the French authorities conceded by releasing them without charge. More recently, one thinks of the threatening language employed by United States’ authorities against BP for an oil spill, although at least they were on more solid ground given that a clear link could be made between BP’s action and subsequent environmental damage.

I wonder if the prosecution of the scientists was motivated by similar populist concerns. Everyone should sympathise with those who suffered because of the earthquake. But it does not follow that someone was criminally liable. Simply put, the fact that someone does their job conscientiously but badly on one occasion is not normally sufficient to attract criminal liability – otherwise we would have a lot more criminals.

I doubt very much the scientists in question deliberately set out to mislead the public or the government (and if so would have opened themselves to a different sort of legal liability such as fraud, or censure by their professional body if they have one). Instead the reasoning seems to have been along the following rather crude lines: they were paid to study a phenomenon and warn of the known danger associated with it; they failed to do so; lives were lost as a result of the lack of warning; therefore the scientists should be imprisoned. (I repeat the caveat at the beginning that I am only going on the international news report.)

There are two immediate objections. First, applying the same reasoning, a host of others will have to be prosecuted too, as I inferred above. All of the economists and financial journalists paid to study the financial system would be good candidates for a start. As well as their lack of warning leading to catastrophic financial damage - far outweighing the usual costs of even severe earthquakes – a number of people have apparently been driven to suicide by financial ruin, which was also eminently foreseeable in the event of a major economic depression. Indeed, some figures I have read put the number of post-2008 financially related suicides higher even than the 300 lives which were tragically lost at L’Aquila.

Secondly, the consequences of punishing failure with the heavy and blunt weapon of the criminal law will have an obvious negative effect of putting people off becoming seismologists in the first place. I cannot imagine any talented young scientists in Italy will be lining up to study the subject at the moment. Far from improving warnings, therefore, the criminal prosecution may lead to no-one accepting a job involving making them at all. As for people who are already seismologists, either they will start crying wolf continuously (and perhaps by the same logic be prosecuted for criminal negligence for over-warning) or they will look for a change in career.

Again, this does not mean that there should be no consequences for properly negligent seismologists or other scientists. If it emerges that someone has been adding figures wrong or negligently failing to look at data, the professional repercussions would normally be sufficient to dissuade anyone else from similarly poor performance.

Something much more than mere failures to give warning should therefore be needed to justify criminal prosecutions of scientific experts for failing to give warnings of known phenomena. What, therefore, was special about this particular group of scientists and this particular instance of allegedly poor performance? If anything, I think the opposite was true and that the failure to foresee the earthquake was not necessarily poor performance at all. If there is one thing certain about seismology, it is that it is an uncertain science. The earthquakes in New Zealand and Japan in recent years, for example, occurred in known earthquake zones in first world countries, where well-paid specialists monitor the signs and study the risks on a daily basis, yet they failed to predict what occurred.

No-one in New Zealand, or Japan as far as I am aware, ever thought the experts should be made criminally liable as a result. Instead the lesson learned was that seismology is an imprecise subject and therefore any population in a high risk zone should spend time and money preparing for earthquakes – as indeed both New Zealand and Japan did, meaning that they suffered far fewer casualties and managed a far swifter recovery than, say, countries affected by the 2004 Tsunami managed.

The criminal justice system in this country comes in for regular rough treatment on behalf of the popular press. Here is a good example, however, of why we should be grateful for what we have, since an equivalent prosecution in this country would be hard to imagine.

Tuesday, 23 October 2012

Black and Morgan v Wilkinson: religious discrimination once more

In advance of the expected judgments of the Supreme Court and the European Court of Human Rights on the issue of sexual equality and religious freedom, the Slough County Court has had to have a go at the issue, in the case of Black and anor v Wilkinson. The judgment can be found here.

The facts
A gay couple asked for a room at a B&B and were refused.  They would have been offered separate rooms but none were available, and the owner objected to unmarried couples sharing a bed. The couple brought a claim for direct discrimination under the regime then in force, namely reg 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 (since repealed by the Equality Act 2010).  That regulation made it unlawful for a person concerned with the provision of services to the public to discriminate against a person who sought to obtain those services on the ground of that person's sexual orientation by refusing to serve them.

The discrimination was not that the proprietor refused gay couples a room per se, but rather all unmarried couples.  It was therefore a question of indirect discrimination, since gay couples presently do not have the right to get married.  The couple involved in the case were not in a civil partnership either as it happens, and on that ground differed from those in the well-known case of Bull v Preddy, though it does not seem to be a material difference.  Incidentally there was evidence that on the odd occasion unmarried couples had been allowed to share a bed, though apparently only when the proprietor had not discovered that they were unmarried until after granting them the room.

A second issue concerned whether the B&B was really a business, or was so closely connected to the proprietor's home that it should be considered as part of the home and thus no-one else's concern.  That might be a grey area in some cases, although in the present case it seems tolerably clear that the defendants were indeed operating a business. But in order to keep this post to manageable length I will leave the point to another day.


On the face of it, the decision seems straightforward.  It is a generally accepted principle of equality that in offering services to the public, one may not discriminate on proscribed grounds.  Few would wish to see B&Bs once again able to display signs saying "no blacks or Irish", and President Obama was rightly applauded when he observed he now held the top job in a city in which many restaurants would have refused to serve his father within living memory.

A slightly differing view is found in this analysis on the UK Human Rights Blog by Alasdair Henderson.  There are some erudite and interesting comments in the discussion thread below as well. Mr Henderson states:

There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law (as has been suggested previously on this blog). At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life.


Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.

With this I respectfully disagree.  The link in Mr Henderson's article is to a previous blog by Aiden O'Neill QC, to which I responded here.  My conclusion was (and remains) that one is entitled to respect for the right to hold beliefs, but not respect for those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it. What is unworkable is trying to determine when and how people are entitled to exemptions from the general law because of a professed religious belief - or belief which they say should be elevated to the same status as religion.

Mr Henderson observes that

... the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.

The problem is that the moment religion enters the public domain one is forced to pick and choose which religions and which of their practices are to be permitted and which are not.  This is not a straightforward exercise, to say the least.  A private member's bill has recently been introduced to the Lords to address one example, and it has provoked some illuminating if disturbing discussion in Hansard.

Still, I cannot help but think that the courts are not always the best way to deal with disagreements.  By using the cudgel of the state's coercive powers to prevent all manifestations of beliefs that we find objectionable, we are in danger of replacing one form of intolerance with another. It is not as though the B&B proprietors in this case or in Bull were out to ban homosexuality or otherwise oppress gay people; they simply had what others would find old fashioned views about marriage. Nor is it their fault that gay marriage is not presently lawful.  Mr Henderson correctly applauds the relatively civil fashion in which the dispute was conducted (in contradistinction to others who dipped their oars into the matter), but given that civility I wonder if litigation was really necessary.

Then again, let us look to the not-so-distant past and a different form of discrimination. In the mid-1970s the Sex Discrimination Act came into force. Yet in some well-known cases that followed soon after(1), elderly male judges ignored the plain meaning of the Act and everything that had ever been said about its purpose. Instead they announced found that separate treatment of men and women might be justified on the grounds of “chivalry and administrative convenience” or disregarded as de minimus.

The judgments read like quaint pieces of social history to modern readers. Perhaps the judges of the day did not see what the fuss was about, or felt that their views were nothing more than “common sense” – as indeed they probably were to an earlier generation. But just as we would now insist in a similar case that the law be applied and the discrimination against women outlawed, so we must decide cases on discrimination involving sexual orientation in the same fashion – unlawful discrimination is unlawful discrimination.

(1) See eg Peake v Automotive Products Ltd [1978] Q.B. 233, where Lord Denning MR offered in the context of different treatment of male and female factory workers "I must say it would be very wrong to my mind if this statute were thought to obliterate the differences between men and women or to do away with the chivalry and courtesy which we expect mankind to give womankind. The natural differences of sex must be regarded even in the interpretation of an Act of Parliament."

Saturday, 20 October 2012

What makes a good argument

When I was at university, a common argument raised during tutorials was that someone could be ignored if they did not fit some demographic category thought to be relevant to the debate. Thus, someone from overseas might be told they could not comment on indigenous rights issues, while others were told they were the wrong race, gender, class or age, and so on it went.

This annoyed me at the time, and it continues to do so whenever I see someone trying it on now.  It might be the case that someone's characteristics lends them some extra insight to a particular question, but it does not render them automatically right on the issue, nor anyone else automatically wrong. 

By way of illustration, suppose we are debating the minimum level of income on which it is possible to survive in present-day Britain. Someone whose parents were billionaires and who has since inherited the family fortune is not exactly in a position to speak on the issue from personal experience. But it does not axiomatically mean that they have no hope of a valid contribution to the debate. They might for instance be highly intelligent and have absorbed vast amounts of relevant data and other evidence on the subject, and thereby have a very informed view.

We saw an argument along similar lines recently in respect of Michael Pinto-Duschinsky’s resignation from the Commission on a Bill of Rights.  He wrote an article in the Daily Mail arguing that because he and his family escaped the Nazis, he had a special perspective on human rights, and would not be lectured by others on the subject.  A good response was published on the UK Human Rights Blog here.

As observed in the comments thread under the UKHR post, Pinto-Duschinksy was arguing a sort of variation on Godwin's law - the rule that says the longer an internet forum discussion goes on, the greater the chance someone will offer "but that's what Hitler thought".  At that point it is a safe bet the discussion will have run its useful course.  The short answer to the point was given by the philosopher Jamie Whyte, who observed that it is not even as though Hitler was wrong about everything.  Hitler thought that Berlin was in Germany, for example, and no sane person would disagree just because Hitler might have said it.

Another variation again is Mr Whyte calls the “motive fallacy”, by which someone’s argument is purportedly discounted because they happen to have a personal reason to make it. For example, I might have a reason to tell my friends that a restaurant is the best of its kind in the area because it is the most convenient to me. But to disregard my choice for that reason alone would be fallacious, since my chosen restaurant might indeed be the best (leaving aside the subjective nature of the term).  In short, the fact that I do (or for that matter do not) have a motive for making a claim does not affect the truth of the claim.

Mr Whyte observes that barristers are the ultimate example, since they have not simply a financial incentive but a professional obligation to make an argument favouring their client. Yet the guilt or innocence of a defendant is a question independent of their barrister’s motivation – otherwise we could simply compare brief fees to determine which barrister has the greatest motivation and award the case to the opposing side.

All of the above is not to say that the motivation of a speaker is wholly irrelevant, but at most it should serve as a good reason to treat the claim with scepticism, and thus to examine the evidence and arguments offered in support much more carefully – but not to dismiss it out of hand. 

Equally, if someone is arguing against their own interests, then that may certainly be a reason to look twice at their argument, though it is still not necessarily conclusive. Hence the old saying that if the Archbishop of Canterbury says he believes in God he is simply doing his job; but on the other hand if he says he does not believe in God then we should sit up and pay attention. But whether God exists or not is independent of the Archbishop's personal belief (unless there is something he is not telling us ...).
Ultimately, arguments have to be assesssed independently of those who hold them - logic, reason and evidence is what should matter in public debate.
I say all this by way of introduction to my latest letter in the Times, published on 19 October 2012, reproduced below:

Dear Sir,

Emma-Clare Richmond (letter, 17 October) says that abortion has to be a woman’s issue, as men will “never experience the first hand pain of such a dreadfully upsetting dilemma”.

This is true, but it is also the case that only front line soldiers will ever experience the terror of combat and its dilemma of kill or be killed, and only the terminally ill face the tragic dilemma of assisted suicide. For the rest of us such issues will (hopefully) only ever be theoretical. Yet I do not think we should thereby be precluded from discussing Britain’s wars or the lawfulness of assisted suicide.

Experience of any form of human condition may give someone a better insight but it does not prevent others from forming valid and principled opinions – otherwise public debate would be considerably reduced, to say the least.

Readers should note, for the avoidance of doubt, that I have expressed no view on abortion itself – only on the concept of valid argument in a theoretical sense and of general application.

For those interested in the concept of valid argument, I would recommend an introductory series of articles written a few years ago by an old friend of mine, Dr Simon Clarke, which may be found online here. (Note the motive fallacy may be levelled against me in recommending Dr Clarke!)

Friday, 19 October 2012

MPs expenses

The issue of MPs’ expenses is back in the news. It seems that MPs have experienced much and learned little: the system is still being used as a cash cow, and they are still trying to keep the whole thing quiet.

According to the Telegraph:

The Independent Parliamentary Standards Authority (Ipsa) reversed its decision to publish information about MPs’ landlords today, after the Speaker of the House of Commons ordered the regulator to keep the information private for “security” reasons.

It is feared that several MPs may be exploiting a loophole in the rules that allows politicians to rent their homes to one another.

This means that MPs can still effectively build up property nest eggs at taxpayers’ expense, despite official attempts to stop the practice following the expenses scandal.

More details have followed since.

Both the amount of money MPs are paid and the method of payment – salary, bonus, expenses – are essentially political questions. They are however of legal interest in two respects. The first is the obvious question of whether expense claims are lawful; that is to say, whether they are within the rules. Various extremely high profile criminal prosecutions were made under the old regime, following determination of the prior question whether the courts or Parliament itself had jurisdiction over the matter. I wrote about this for Criminal Law & Justice Weekly (vol 175, 5 February 2011, p 73).

The second question is the rather more general point about the wrong approach to making law. In my forthcoming book (details on the sidebar in this blog) I have written about R v Chaytor and suggested something on the following lines:

The fundamental flaw is that any system which operates by people making claims and then hoping to get them approved, but with no restriction on the amount that might be claimed or penalty for having a number of claims refused, gives every encouragement to people to keep on shoving in claim after claim for anything and everything. Any rational, profit-maximising individual would do nothing else.

There are many alternatives. For example, MPs could simply have a fixed sum added to their salaries, to be spent on support staff, travelling expenses or whatever, but no more. Then – in sharp contrast with the present system – they would have every incentive to economise.

All the talk in the original controversy about needing second homes and travel expenses was predicated on the assumption that MPs actually needed to be in any particular physical place at any particular time. In the age of smartphones, videoconferencing and unlimited broadband access, however, that assumption is very hard to justify.

However, let us assume that it is indeed desirable for MPs to be physically present in the Houses of Parliament. Let us also assume that it would be unfair for MPs outside the M25 to be saddled with the extra costs of travelling to and staying in London. Then, one could build a hall of residence for those MPs (with a grander name if one prefers). It could be a modern, furnished and serviced apartment block next to the Palace of Westminster. It would cost a tiny fraction of the amount spent on second homes, the security costs would be far lower as there would only be one building to protect, and MPs would have no more and no less than they needed.

No doubt MPs would feel demeaned by this. But they might consider that a number of large city law firms have dormitories on their premises, together with a few ancillary services such as a canteen and laundry service. These are provided for partners working overtime on large deals. If the apartment block was within walking distance from the Houses of Parliament, (perhaps with an underground tunnel to reduce security costs and provide disabled access) it would slash travelling expenses as well.

This would go a long way towards restoring public confidence in MPs and Parliament generally. One fears though that a majority of MPs will still prefer to play the property market at the taxpayer’s expense and either withhold details from the public or take the loss of popularity on the chin.

Unless the above suggestion or a similarly radical reform is instigated, public confidence in Parliament will continue to be threatened. Needless to say, it is not only lawyers who should be concerned by that.

Wednesday, 17 October 2012

Prince Charles and his letters


The role of "Prince of Wales" is not particularly easy to define.  Aside from managing the Duchy of Cornwall, which is presumably almost completely delegated to professionals, the holder of the position seems to spend most of his time doing similar things to the monarch but (one suspects) with the same sort of feeling as the opening act for the Rolling Stones. 

No Prince of Wales in history has had to wait as long to be King as Prince Charles. Perhaps with a resultant sense of frustration, Prince Charles has for some years now been writing letters on all manner of subjects to all manner of MPs and others in officialdom.  In doing so he has been acting as a sort of unpaid lobbyist or semi-professional gadfly. 

Immediately one sees a problem.  When he becomes the monarch he will be required to be politically neutral, something his mother has almost always conscientiously observed.  In turn that means Charles III will have to be seen to be politically neutral.  But by writing so many letters on matters of political controversy, Prince Charles has been seen as anything but neutral or devoid of political opinions.  One presumes those opinions will not disappear overnight when he becomes Charles III. Therefore, he will be somewhat compromised as monarch from the beginning. 

With this in mind the Guardian newspaper made a freedom of information request to obtain a number of letters written by the Prince in 2004 and 2005. The request pertained to letters involving “advocacy” on the part of Prince Charles, defined as (i) identifying charitable need and setting up and driving forward charities to meet it, and/or (ii) the promotion of Prince Charles’ views on various issues.

In 2010 the Freedom of Information Act was amended to give the heir to the throne exemption from all future requests.  This is somewhat remarkable on its face and deserves further comment at another time.  Staying with the Guardian's request for now, however, the Upper Tribunal ruled in the Guardian's favour in September of this year (Evans v IC and Others (Seven Government Departments) [2012] UKUT 313 (AAC)).  Now, however, the Attorney-General has reversed that decision, in a rather surprising ruling.  The Telegraph reports

[The Attorney General] said it was in the national interest to ban publication of the letters “because if he forfeits his position of political neutrality as heir to the throne, he cannot easily recover it when he is king”.


Mr Grieve overturned [the Upper Tribunal's] decision, saying there was an “exceptional case” for him to use his veto to prevent the Prince’s “most deeply held and personal beliefs” becoming public

In a 10-page summary of his reasons for overturning the judges’ decision, Mr Grieve said the Prince’s letters had been “urging a particular view on ministers” but this amounted to him “educating” himself about the work of government in preparation for becoming king, making the letters exempt from freedom of information requests.

The Attorney-General's ruling may be found here. I have to say I am not convinced by his reasoning, with the greatest of respect.  It is a stretch to argue that lobbying for a change in the law is "educating" the lobbyist in how government works; and if that was the objective behind his letters there were rather better ways in which the Prince could have gone about it - seeking advice from constitutional lawyers and political scientists for example.

Secondly, if disclosure of the content of the letters would indeed forfeit the Prince's political neutrality, then they should not have been written in the first place.  The answer is not for them to be written and then hushed up.

Thirdly, the Attorney General maintains that there is "nothing improper" in the letters, but that seems more like a reason for, not against, publication.

The Queen gives a weekly audience to the Prime Minister, and otherwise has ad hoc contact with politicians.  No doubt at these meetings she gives her opinion on various matters and, of course, the content of all such occasions remains confidential.  Here is the strongest ground in Prince Charles' favour: he may simply be informally copying what the Queen does already.  It is unrealistic to think that the Queen has never offered her personal views to the Prime Minister during the weekly audience.

Nevertheless, I do not think the situations are identical.  For a start, I am not aware that the Queen ever sent lobbying letters to anyone before she became Queen.  Secondly, the Queen has never indicated that she wishes to influence contentious political matters in a concerted fashion, as opposed simply to offering the Prime Minister the benefit of her experience of more than six decades in public life. By contrast, Prince Charles has not made secret his strong views on the environment and various other issues and therefore presents himself as much more of a political animal. In other words, it comes back to being seen to be impartial, much as justice has to be seen to be done. 

The present case is not the same situation as occurred with Prince Charles' private diaries, which were the subject of legal action a few years ago, and which I have written about for my forthcoming book (and previously for the New Law Journal).  The diaries were never intended to be anything other than an entertaining read for the Prince's close friends: they were certainly not an attempt to influence senior politicians. Prince Charles was therefore entitled to an expectation of privacy with regard to their contents and even to the fact of their existence. 

Nor is Prince Charles in the same position as, for example, a barrister hoping to become a judge one day. Although some barristers do become known for always acting for a particular type of litigant, and they may publish strong opinions on various areas of law, all are bound in their role as barristers by strict rules of conduct and the cab-rank principle. There is no equivalent for Prince Charles. Secondly, judges give virtually all their decisions in public, so one seen as favouring his former clients would be found out quickly. Again, that does not apply to the monarch, who does much in private including the aforementioned meetings with the Prime Minister.

The reality is that if the letters were published then pressure would mount for Prince Charles to step aside and allow William to become King when the Queen dies. It might be hard for Prince Charles to accept, but the truth is that the institution of the Monarchy would probably be more popular as a result, not least because it would not have to fend off inevitable rumours and accusations concerning the letters.

UPDATE: Jack Straw has written in defence of the letters here. It seems to me that the problem stems from the fact that Prince Charles has never made secret his wish to influence areas of very contentious politics - such as human rights - and areas of science, when he is qualified in neither and which one would not expect the monarch (or monarch to be) to attempt to influence.  He might offer an opinion in private but seems to be going beyond this with sustained letter-writing campaigns.  Were he to confine himself to helping with charities and building bridges between business and regulators - the sort of thing that no-one much disagrees with - there would be a lot less controversy and any correspondence would rightly be treated as confidential. 

Friday, 12 October 2012

Growing pains - the case of the foul-mouthed gardener

Published in the New Law Journal, vol 162, 12 October 2012, p 1294

Tolethorpe Hall in Little Casterton, Rutland, is a fine example of an English country house and grounds. The gentle Gwash river meanders past the house, with the picturesque Gwash valley behind. It is hard to think of a more classically English rural scene.

Despite the tranquil setting, the estate has seen its share of human drama over the years. It was for a time the seat of the Browne family, one of whom (Robert, c. 1550-c. 1633) led the “Brownists”, who campaigned for a congregational form of organisation for the Church of England before being run out of the country. In the early 1970s, a few centuries after Browne, and nearly a millennium after the first record of a house on the site, the estate found its way into the law reports by way of a landmark employment dispute.

At the time the estate was owned by one Mr Racher. The head gardener was a Mr Wilson (no relation). The two failed to get on from the start, and the disgruntled Racher went looking for a way to rid himself of Wilson.

Continue reading here.

Wednesday, 10 October 2012

Free speech again

I have always enjoyed reading Private Eye, and often laugh out loud at the cover picture and caption.  Over the years, some of the covers have strayed very much into bad taste, and I suppose my enjoyment therefore counts as something of a guilty pleasure.

For example, at the time of the Thalidomide scandal, a company executive was shown on the cover exclaiming "they haven't got a leg to stand on".

Almost matching that for offence was the picture of a stressed-looking Michael Barrymore when Stuart Lubbock had been found dead following a party at Barrymore's house.  Press reports stated that Lubbock had received a serious sexual assault before his death.  The caption had someone asking how he died, with Barrymore (who is homosexual) responding "Buggered if I know".

Then there was a picture of Lord Hutton after his well-known report on Dr David Kelly's death, which largely exculpated the government.  The caption read "... and in conclusion, I find Dr Shipman innocent of all charges."

The Eye is no stranger to the courts, though so far as I am aware it has only experienced the libel courts at the RCJ on the Strand rather than the criminal courts at the Old Bailey up the road. 

Of course I accept that some people would be grossly offended by the three covers.  But I do not accept that the Eye should have been prosecuted for any of them.  And yet the possibility of any similar items landing the Eye in the dock must now be raised, given a recent and very disturbing assault on free speech in this country.

As set out by the UK Human Rights blog, one Matthew Woods, a 20-year-old, has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. He pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending ”by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. 

This is the same Act that was responsible for the infamous Paul Chambers twitter trial, which I wrote about recently. In the case of Chambers, what he wrote was patently not of an indecent, obscene or menacing character, so the CPS should never have gone near him.  In the case of Woods, by contrast, what he wrote was certainly indecent and obscene, so it can be said that there was a prima facie case.  But there are at least five problems.

First, the sentence is wholly disproportionate given the number of crimes involving actual violence or burglary or other things distinctly worse than offensive words on the internet which do not result in any custodial sentence. The press readily supply examples of assaults or burglaries which end up with a slap on the wrist by way of a conditional discharge or something else well short of prison.

Second, and more fundamentally, criminalising offence is contrary to the basic idea of freedom of speech, which is that not only “good” speech is permitted. As I have said in my forthcoming book,

With regard to freedom of speech, I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. 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 fulfilment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. 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.

Third, there is a simple remedy for those who are offended by rubbish on the internet or elsewhere.  I can’t say I find the humour of Russell Brand or Frankie Boyle particularly funny - both of whom try and generate laughs by being as offensive as possible - so for the most part I don’t bother watching or reading them. That is the simplest remedy. If anyone annoyed me on Facebook or Twitter I would defriend them or stop following them.  (Indeed, as it happens, I have stopped allowing comments on this blog because of a tiresome number of either pointless comments or spam kept appearing.) 

Fourthly, we have to define what is offensive in the first place, which might not be so obvious.  I imagine we might all agree that Mr Woods' efforts fell into that category.  But a highly intelligent blogger of my acquaintance recently wrote a wholly innocuous piece about the innocence of childhood, in a light-hearted and humourous vein, and had two people take a ludicrous amount of offence to it, having wholly misread the tone of the post. I would not like them on the jury if I were ever prosecuted for some internet publishing offence that carried the right to jury.

Fifthly, and finally, any attempts to ban offensive material on Twitter and Facebook or the internet generally are pretty much doomed to fail, because there are many millions of posts every day.  The CPS cannot possibly consider every one of them and, besides, any number are generated overseas and thus beyond the jurisdiction anyway. 

The date of the Communications Act gives a clue about why it is turning into such a problem.  2003 was another age, or, frankly, another epoch in the history of electronic communications.  It predates both Facebook and Twitter.  For those aged 20 or less, I imagine that seems like the 19th Century does to my (only slightly older) generation.  I wonder if those drafting the Act really had any idea of the likely effect of what they were doing.  Either way, Parliament needs to look at it again, and quickly.

Religion and education: Re G (Children) [2012] EWCA Civ 1233

Britain is a multi-faith country, in which each citizen is free to practice his or her religion without any state interference. Aside from a few mostly harmless quirks here and there involving the established church, the law does not favour one religion over any other. Nor does it investigate tenets of belief or judge their worth. What is more, that principle of freedom has a much wider application than just religion. In a free society one may choose one’s lifestyle on any ground, spiritual, material or otherwise. Someone’s lifestyle is only a problem if they break the criminal law or expect the state to fund them. Thus a person who squanders all his natural ability and works only the minimum amount to buy food and shelter, spending the rest of the time on the couch, beer can in hand, has the perfect right to do so and the law does not tell him otherwise.

Most of the above was recently reiterated in ringing tones by Munby LJ, giving the lead judgment of the Court of Appeal, in Re G (Children) [2012] EWCA Civ 1233. He wrote:

35. Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles. … The starting point of the common law is thus respect for an individual’s religious principles, coupled with an essentially neutral view of religious beliefs and a benevolent tolerance of cultural and religious diversity.

36. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are “legally and socially acceptable …”

No-one who supports freedom of religion, much less the wider view of freedom in my opening paragraph, would disagree.

There is, however, one large caveat. It is simply not possible for the law always to remain non-judgemental about religion or culture. As recognised in the last sentence in the quotation above, some religious (or cultural, or a combination of both) beliefs involve practices that in this country at least are a criminal offence: forced marriages, female genital mutilation and “(dis)honour killings” are three extreme examples often mentioned in the media. Others involve breaches of civil law provisions such as equality legislation, as we have seen in other high profile cases.

Then there are cases where no breach of the law is involved, but where two religious adherents are compelled to resolve a dispute by way of litigation. This was the case in Re G, where in order to dispose of the case the court found that it had to evaluate competing religious beliefs and give a decision which, for all the court’s denials, amounted to saying that one set of religious beliefs provided a child with a better chance in life than another.

The facts of the case involved a marital breakdown and a consequent dispute between the parents as to which school the children should attend. Both parents were from the Chassidic (Hasidic) or Chareidi community of ultra-orthodox Jews. They were married in 2000. It was an arranged marriage. According to the mother it was not a happy marriage. The breakdown occurred in 2010. The father remained a strict adherent of the Chareidi community. The mother, on the other hand, while still considering herself an Orthodox Jew, no longer followed some of the more strict practices of the community. Because of the mother’s change of position, the parties were unable to agree about whether the children should attend a Chareidi school, and had to resort to the family courts to resolve their dispute. The judge at first instance ruled in favour of the mother and the father appealed to the Court of Appeal. (There was one other point in the case but I shall confine myself to the point about the children’s education.)

Munby LJ noted that once upon a time the court would simply have gone with the father’s choice irrespective of what the mother wanted or what a neutral third party (in the form of the court) might have thought best. In the present day, however, long after Mrs Gillick’s famous case, the court was required to ascertain and give effect to the best interests of the children. In doing so it would as a starting point give equal weight to the beliefs of both parents.

In the present case there was no extraneous factor that would enable the court to favour one parent over the other (there might be if one of the parents was a criminal, or had mental health issues, or something on those lines). Both were good citizens who held sincere and genuine views.

Therefore, when deciding the best interests of the children, the court could reach a decision that was consistent with the views of one parent, or neither – but not both. What is more, given that the only material dispute between the parents concerned religion, the court had to investigate the effect of those beliefs on the children and make a decision as to which belief system would be “best” for the children – precisely what Munby LJ was (quite rightly) adamant that the courts always wished to avoid.

In an admirably clear and practical judgment, Munby LJ faced up to the dilemma squarely:

“[76] Stripped down to bare essentials the dispute … was whether, on balance, the mother’s arguments based on education should prevail over the father’s arguments based on way of life.”

He then identified a “fundamental issue”:

“What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent?”

He found three answers: first equality of opportunity was a fundamental value of our society. Second, “we foster, encourage and facilitate aspiration”. Third, “our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead … and to give effect so far as practicable to their aspirations”.

The corollary to the last point was that where the court had to decide as a “judicial parent”, the judge had to be “cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future”.

That was the crux of the ruling: the schooling preferred by the mother would, on the evidence, give the children more opportunities than the more restrictive religious education preferred by the father. That evidence showed that, following the father's preferred course, beyond GCSEs it was rare for children to have non-Talmudic qualifications; the majority did not go to university for example.  It was rarer still for female children.

Interestingly, Munby LJ did not confine himself to saying that it was for the children’s benefit, but noted that society as a whole has gained from the increased participation of women in professions such as law and medicine. Endorsing the reasoning of the first-instance judge, he also based his decision on the case-specific point of the emotional impact on the children – their relationship with their mother might be affected if they were to go to a school of the father’s choice. A third strand in the reasoning was that the children would be able to return to their religious roots in adulthood if they followed the mother’s education path, but the reverse would be much more difficult.

It seems to me that that was the only way the court could have dealt with the case. If the state is called upon to adjudicate a dispute involving moral or religious questions, the fact is that it will do so according to the prevailing moral and religious tenets of the society as a whole, if there is no way of reconciling the tenets of the parties involved in the case. This is something all citizens – whether indigenous or immigrant, minority or majority – ultimately have to accept. Just as there are limits to the fundamental right to freedom of speech, so there are with freedom of religion. For those as devout and sincere as the father in Re G this may in certain circumstances be a harsh message, but they might also reflect on the fact that far greater freedom and respect is afforded to their beliefs in this country than most other societies past or present.

Monday, 1 October 2012

The Lord Chancellor again: judicial pension strife

Predictably it did not take long for the theoretical questions about the appointment of Mr Chris Grayling as Lord Chancellor to be repeated in a practical context. One of his first duties in office has been to grips with a dispute inherited from his predecessor, Ken Clarke, concerning judges’ pensions. The executive is on a cost-cutting mission, and it seems not even the judges are exempt from its financial scythe.

Joshua Rozenberg has more details here. Traditionally, the Lord Chancellor would be expected to start at the very least as a neutral party in a dispute between the judiciary and the executive (wearing three hats as the old position used to entail: member of the bench, the cabinet and the Lords). As a senior QC, a Lord Chancellor of old would not need a political career for his income or prestige, nor would he or she fear adverse consequences for a future career as a barrister by taking a stance against the judges. To put it bluntly, a silk of many years standing could afford to have principles. And a silk would be well versed in concepts such as judicial independence.

Mr Grayling, by contrast, as a career politician, may not have the same luxury or expertise. Cynics might observe that a recent phenomenon in British politics is the rapid growth of a class of people never to have a job outside politics, journalism or academia, and whose ability to act independently of their paymasters is constrained accordingly. Mr Grayling, it has been inferred, would therefore have a strong personal incentive not to rock the executive’s boat.

His difficulties are increased by the fact that as well as Lord Chancellor he also holds the position of Secretary of State for Justice. Therefore, even if he was determined to be robustly independent as Lord Chancellor, he (as with all recent holders of the office) also has to consider his duties as a member of the cabinet in another role. A dispute over judicial pay is a classic example of a situation where separate holders of the respective offices might be expected to want different outcomes.

Mr Grayling can be excused for feeling as though he is Pooh-Bah in the Mikado considering how to fund Ko-Ko’s wedding, for which purpose he has to reconcile his duties as First Lord of the Treasury, Lord Chamberlain, Attorney-General, Chancellor of the Exchequer, Privy Purse and Private Secretary. (Though at least we can be sure that Mr Grayling will not adopt Pooh-Bah’s suggested solution that a large enough bribe all round ought to square it)

Mr Rozenberg warns the dispute over pensions may become bitter enough to end up in court. A few years ago the constitutional law expert Sir Geoffrey Palmer recalled a similar dispute when he was in the New Zealand government. The judges backed down and, as a face-saving measure, said they had done so because there was no impartial tribunal that could have heard the case. As Palmer pointed out, however, it could have been heard by a retired judge (or the Privy Council, though that option would not be available in Britain unless the board was to comprise exclusively Commonwealth judges).

Turning to the substance of the dispute, Mr Rozenberg rightly warns of the danger of reducing judicial pensions. Already senior judges earn substantially less than senior barristers. In an age where the culture of service seems to have markedly declined (though the judiciary is one place where it remains alive as much as anywhere) further reductions in income will be a strong disincentive for the best candidates to want to apply for the bench.

One point made by Mr Rozenberg needs some expansion. He writes:

But the road to a full-time judicial appointment is a one-way street. By convention, you can't return to life as a solicitor or barrister.

It is true that that has been the convention but (as Mr Rozenberg is certainly aware) as with much of our unwritten constitution it is not binding; hence the term “convention”. In modern times the late Sir Hugh Laddie retired early from the bench and became a specialist practitioner. Lord Pannick QC wrote in support of his right to do so in the Times. Mr Justice Peter Smith negotiated for a time with a prominent City law firm about joining them from the bench – an episode with a most unfortunate aftermath, as well chronicled at the time by Mr Rozenberg himself and others. As it happens, New Zealand also has some recent examples, one where Williams J returned to the bar very soon after joining the bench, having found it not to his liking, and another where a district court judge pleaded guilty to criminal charges after fiddling his expenses and also went back to private practice (though as I recall not in a capacity in which he would appear before the courts).

If judicial pensions are cut by a tangible amount, then one imagines that the move from bench back to private practice might become more common, and after a time only those barristers whose careers do not provide an income much superior to the bench will be tempted to apply (or perhaps they will demand a Sumptionesque bypass to the Supreme Court). The consequences will not be to the nation's advantage.