A(nother) lawyer writes

Assisted suicide again

2012-03-12T08:01:00.016Z

For Halsbury's Law Exchange

UPDATE: see this morning's Telegraph for a potentially interesting development.

Recently Halsbury's Law Exchange (HLE) concluded its student competition by asking the five finalists to provide a video submission on whether or not assisted suicide should be legalized. The videos were all of a high standard and can be viewed on Youtube.

Predictably the videos proffer views as strongly expressed as they are disparate. The fact is that assisted suicide is an issue about which one cannot be uncontroversial. Either one believes that there are certain circumstances in which a person should be permitted to end his or her life, with assistance if necessary, or one does not. Either way, one will encounter passionate, articulate and determined opposition. There is no fence to sit upon.

Elsewhere on HLE an opinion piece by Jacqueline Laing was recently reproduced from the New Law Journal. It argued that assisted suicide equals institutionalised murder, nothing less, no exceptions. There has also been the policy paper for HLE prepared by John Cooper QC, which argues that the existing guidelines released by the Director of Public Prosecutions following the well known Purdy case (R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2009] 4 All ER 1147) are adequate even if they go further than was strictly required by the Purdy decision.

For a different perspective, the formidable Becker-Posner blog has recently posted on the issue (see here and here), both authors supporting some form of assisted suicide based on the rather different perspective of economists, as did the well-publicised paper prepared by Lord Falconer with the support of Dignity in Dying.

It seems to me that there are two broad questions. The first is whether any form of assisted suicide ought to be legal in the first place. This involves questions of philosophy and religion that have been debate more or less throughout recorded history without anything like a consensus emerging. If one answers in the affirmative, then the second question arises of how to devise a legal framework to allow it. This involves defining the permissible circumstances and providing a safeguard against abuse – and abuse in this context equals murder. The second question is almost as difficult as the first.

Needless to say, I cannot attempt a full exposition of either within a blog. For the former I would refer readers to the Philosopher's Brief, filed by a number of eminent United States' authors for a Supreme Court hearing in the 1990s. In common with them I believe that there are indeed circumstances in which assisted suicide one should be permitted.

The cornerstone of the philosophers' argument is the concept of individual autonomy (note that they had to structure their argument to constitute a legal submission in the context of the United States’ constitution rather than an abstract moral philosophy paper). To my mind, however, the key point is that one is already permitted to refuse medical treatment even when certain death will shortly follow - a transplant operation, for example, or taking some form of vital drug. There is something approaching a consensus that that rule is morally just. If, therefore, one may refuse medical intervention even though the consequence of refusal is virtually immediate death, then I would argue that it follows that in certain circumstances one ought to be able to accept treatment with the same result. This is the point that my co-author and I made when writing about the issue for Criminal Law & Justice Weekly in 2010.

The terminally ill Dianne Pretty faced a drawn out and excruciating death due to her degenerative illness. When the courts refused to accept that she might be assisted in suicide at a time and place of her choosing, she had no choice but to suffer precisely the ghastly death she had gone to court to avoid. I would not have wished to have been the one to deliver the news to Ms Pretty about the fate she was to endure. Rather less would I wish to receive the same news if I developed the same illness as Ms Pretty.

All that, however, is not to belittle in any way the strength of the opposing argument. The very idea of a medical professional assisting someone's life to end seems counter-intuitive, to say the least. But it seems to me that the strongest arguments against assisted suicide come when considering how an acceptable legal framework might be developed to permit it. It is not difficult to envisage circumstances whereby continuing to live in ghastly circumstances would be beyond the endurance of any of us. Indeed there is no need to imagine - Diane Pretty faced an actual example. But it is equally easy to imagine circumstances in which permission for assisted suicide might be abused: the aforementioned New Law Journal article does just that. If it transpires that the risks of abuse are too great, then even supporters of assisted dying would have to concede that it should not be permitted.

We must therefore address the second question identified above. Again, I would refer readers to Mr Cooper QC's policy paper for a detailed treatment of the development of how the law has developed to date and the Commission on Assisted Dying for a consideration of how it might be altered in the future.

I would note that while suicide was legalised in 1961, assisted suicide remains illegal. Nothing in the DPP guidelines on when prosecution will be undertaken changes that. While it is fundamental that the Attorney General retains the discretion whether or not to prosecute in any individual case, he and his subordinates have no power to impose a blanket decision never to prosecute. If it transpires that no prosecution ever takes place, despite prima facie evidence offences having been committed, then the DPP may well be found to have been acting unlawfully.

The risks that any legal framework must guard against are obvious. The very elderly or the terminally ill are ipso facto among the more vulnerable members of society. Ms Laing writes that:

“Once enshrined in law, the practice invariably involves a move towards the elimination of those who have not asked to be killed, those who are unwanted, those who are lonely and low-income (KNMG Dutch Physicians Guidelines, Position paper, 23 June 2011), and those whose deaths offer some advantage to third parties controlling the process. It does so because it involves a radically altered mindset.

Organs for transplant are an ongoing incentive for active euthanasia. So too is cost-saving, litigation and payout minimisation, bed clearing, medical research, improper individual concerns about inheritance and even political Malthusianism. In this environment, failures of transparency, ie lies and deception, are both pragmatic and inevitable.”

Can safeguards prevent abuse of this nature? I would observe that the law already has to frame questions of equal magnitude and difficulty elsewhere. Legalising suicide in the first place opens the door to possible abuse. Perhaps more pertinently, the law of self defence, or defence of another, allows what would otherwise be murder. Unlike assisted suicide, the state’s approval has to come after the fact, where the circumstances are harder to reconstruct and therefore the claim of a prospective defendant that he or she was indeed acting to save him or herself or another person is much harder to assess – leading to obvious potential for abuse. Yet no-one suggests that the defence should be removed, because it is a fundamental right to protect one’s life, even if that may entail ending the life of one’s assailant.

Or there is the emotive issue of abortion, with recent newspaper reports suggesting that there are cases of “gendercide” in this country, where some wish for cultural reasons to have sons rather than daughters. This, or any other form of abuse, has not (or not yet) led to a suggestion that abortion should never be allowed.

More detailed suggestions are made in the paper issued by Dignity in Dying. The paper can be accessed on their website. I would suggest that these should indeed be sufficient if rigorously policed and enforced, and preferable to the present situation where all seems to turn on the DPP’s interpretation of its own guidelines.

Cross about work

2012-03-11T08:07:00.000Z

The headline in today's Telegraph (10 March 2012) warns of an impending ECHR case in which the claimants want to establish the right to wear a cross at work, as a symbol of their religious faith.

A few questions:

- should the state have anything to do with workplace clothing regulations?

- if so, should it allow exemptions on health and safety grounds, or for any other reason?

- if so, who is going to decide what is a genuine symbol, or someone taking the mickey?

- what of religious institutions such as faith schools?

A modern-day "conchie"

2012-03-08T15:59:00.000Z

Published in Criminal Law and Justice Weekly, vol 176, 3 March 2012, p 135

Conscientious objection to military service has provided much drama in both fiction and real life for many years. In fiction one finds examples in the recent Downton Abbey, or the gentle Private Godfrey in Dad’s Army, and countless other works as well.

The most famous non-fiction example is possibly Mohammad Ali, who chose jail rather than serving in Vietnam against an enemy he did not know on behalf of a state that declined to afford him full civil rights.

Recently the case of R v Lyons [2011] EWCA Crim 2808 raised the same issue in the context of Britain’s modern wars.

Lyons held the rank of leading medical assistant in the Royal Navy. In May 2010 he was told he would be deployed to Afghanistan. He formed the view that the UK’s involvement in the conflict was wrong and that it would be morally wrong for him to take part. He therefore applied for discharge on the ground that he was a conscientious objector. The application was refused and he appealed. Before his appeal was determined, he was ordered to undertake a pre-deployment weapons training course. He refused to participate. He was court-martialed and found guilty of intentionally disobeying a lawful command contrary to s 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months’ military detention, demoted to able seaman and dismissed from the service. He appealed against sentence.

Historical background

Objection to war – a particular conflict or warfare in general – on religious or secular grounds is no doubt as old as war itself. In Britain the armed forces have historically been recruited on a volunteer basis. Full-scale conscription was unknown in this country until the Great War, when the British army found itself drawn irrevocably into the sort of full-scale conflict on the Continent which it had spent a century planning to avoid. By contrast, most Continental powers had had compulsory military service for generations, the modern origins lying in the French Revolution and the subsequent creation of the Grande Armée.

It is therefore noteworthy that Britain was the first amongst European powers to have formal legal recognition of conscientious objection. Mention was made in the Militia Act 1757, but the story in modern times begins with the Military Service Act 1916, an Act which simultaneously introduced conscription and the recognition of objection on the ground of conscience.

During the Second World War, nearly 60,000 registered as Conscientious Objectors. After national service ended at the start of the 1960s, formal procedures for dealing with conscientious objectors fell away, until in 1970 the Advisory Committee on Conscientious Objectors (ACCO) was formed as a non-departmental public body to advise the Secretary of State for Defence.

Continue reading here.

Old Number One or New Number One?

2012-02-23T21:44:00.000Z

I have been published in this week's New Law Journal, vol 162, 24 February 2012, p302, on the case of the vintage Bentley.

Same-sex marriage again

2012-02-20T10:00:00.000Z

For Halsbury's Law Exchange

Last year the Scottish government began a consultation process asking if marriage in Scotland should be allowed for gay people through a civil or religious ceremony. The strength of opposing feelings on the issue is hinted at by the fact that on Valentine’s Day more than 1,000 people marched through Edinburgh in favour of the idea, whereas last year a pressure group calling itself “Scotland For Marriage” held a rally outside the Scottish Parliament to protest against it.

The issue has also been debated recently in Australia. Meanwhile the Nigerian government has not simply banned same-sex marriage, it has actually made the idea a criminal offence, with a penalty of 14 years’ imprisonment for any person who enters into a same-sex marriage contract or civil union. Apparently even that law was thought insufficient, and a separate offence was therefore passed which made “witness[ing], abet[ting] or aid[ing] the solemnization of same-sex-marriage” punishable by up to 10 years’ imprisonment.

It remains the case in the United Kingdom under s 11(c) of the Matrimonial Causes Act 1973 that a marriage can be entered into only by a male and a female, but there have been significant developments over the past decade or so.

The first was the passage of the Human Rights Act 1998. Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 12 does not settle the issue because the European Court of Human Rights has decided (in Schalk and Kopf v. Austria) that it is a matter for national authorities to decide whether to allow same-sex marriage. The court’s reasoning was based in part on the fact that there was no consensus across member states on the issue (some, such as Spain, already allow same-sex marriages, but others do not).

More significant in the UK was the passing of the Civil Partnership Act 2004, which allowed same-sex couples to enter into a union conferring the same legal rights as marriage in the area of wills, tax and so on. Interestingly, the right to enter into civil unions was restricted to same-sex couples, even though the form of partnership – legal rights with no religious implications – might equally appeal to some heterosexual couples.

The next step was the lifting the restriction on conducting civil partnerships on religious premises by an amendment to the Equality Act 2010 – though (at least at present) no religious institution can be compelled to conduct them.

The remaining question is of course the most emotive of all: whether same-sex marriage will be recognised in law, and if so, whether that step will be taken (and supported) by Parliament or by the courts.

It is next to impossible to imagine that the courts will find a right to same-sex marriage in any existing domestic statute, and given that the European Court of Human Rights explicitly refused to find such a right in the Convention, that option will not be taken by the domestic courts either. Even if the courts did take the step themselves, if Parliament disagreed it could either refuse to recognise the court’s ruling (if it came from Europe) or legislate to overrule it (if it came from a domestic court).

Realistically therefore the only way a change will come about will be by an amendment by Parliament to the 1973 Act. One would expect the robust debate in Scotland to be mirrored in the rest of the country before any such step is taken.

In previous articles on the subject I have suggested a possible solution along the lines of France, to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue.

The well known American lawyer Alan Dershowitz advanced a similar view a few years ago, going one step further by arguing that the state should only confer civil partnerships, and leave the dispensing of the word “marriage” to the free market.

Either solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

No doubt many will disagree, but in response I would simply say that removing state control of the issue would leave it to the marketplace of ideas.

Free speech and street preaching

2012-02-13T10:20:00.002Z

Published on Halsbury's Law Exchange here

The limits of free speech and freedom of religion are presently on trial once again with the reported prosecution of a Christian street preacher, Michael Overd, in the Magistrates’ Court. The case arises out of threatening remarks Mr Overd allegedly made in public to a homosexual couple.

The trial brings to mind a similar prosecution from earlier this century, of the street preacher Harry Hammond. I wrote about the trial for Criminal Law & Justice Weekly (vol 175, September 10 2011, p 527), and this blog is substantially based on that article.

I am insufficiently familiar with the facts of the Overd case to comment on its merits, and to do so would be inappropriate before the conclusion of the trial in any event. My comments are therefore in relation to Hammond’s case only (which was on related but not identical issues), and are not to be taken as agitating for a verdict either way with Overd’s.

Hammond was an Evangelical Christian who had been a street preacher for 20 years. The Justices described him as “a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.” During the summer of 2001 he had a large double sided sign made bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’ on each side and attached to a pole.

Prior to 13 October 2001, Hammond had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.

During the afternoon of Saturday 13 October 2001, Hammond travelled by bus to Bournemouth to preach with the sign. During the bus journey he covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.

On arriving at Bournemouth town centre, he positioned himself in a pedestrianised area and began preaching, holding the sign upright so that it was clearly visible to passers-by.

A group of 30 to 40 people gathered around him, arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at him and one person was hit over the head with the placard.

At one point someone tried to pull the placard away from Hammond, during which he fell backwards to the ground. He got up again and continued with his preaching displaying the sign, whereupon a member of the public poured water over his head.

The police arrived and asked him to take the sign down and leave the area. He refused. Despite the fact that he seems to have been more on the receiving end of the violence, Hammond was arrested and charged with an offence under s 5 of the Public Order Act 1986. He was convicted, and then appealed by way of case stated to the Divisional Court. Sadly he died before the appeal could be heard, but the court went ahead in any event.

The court ruled that it was necessary for the prosecution to prove that the sign which Hammond was displaying was threatening, abusive or insulting and that it was within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It was a defence for Hammond to prove that, nevertheless, his conduct was reasonable.

The court concluded, not without hesitation, that the conviction should stand. It held that (i) the words on the sign were capable of being held to be insulting, not least because they appeared to relate homosexuality and lesbianism to immorality; and (ii), notwithstanding familiar free speech arguments advanced on Hammond’s behalf, it had been open to the Justices to find his conduct unreasonable.

Harry Hammond’s life and death therefore stand as part of the matrix of religion and the law, and freedom of expression generally.

Two things have been common to many cases in that matrix, including Hammond’s. First, they concern people expressing genuine and deeply held beliefs that until very recently represented mainstream opinion in this country.

Secondly, for those involving homosexuality at least, they involve the expression or manifestation of opinions that would never be tolerated if they concerned other minority traits such as race.

Thus arises the key question at the heart of liberal philosophy: how to tolerate intolerance. In the context of free 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 fulfillment. 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.

Peter Tatchell, the inveterate homosexual rights campaigner, advanced a similar view when commenting on Hammond’s case at the time of the original conviction:

“Criminalising prejudiced opinions is a step too far. Where do you draw the line between legitimate robust criticism and illegitimate rank prejudice? The only circumstance where there is a clearly valid case for limiting freedom of speech is when it involves inciting violence”

No-one would have known better than Mr Tatchell that only a few years before it would have been gay rights campaigners like himself who were getting assaulted in town squares by angry crowds.

He would also have known that it was hardly likely, to put it mildly, that any passer-by would suddenly undergo a radical and irreversible change in their beliefs simply after seeing and hearing the sermons of Mr Hammond. I have seen many a street preacher but never an audience for one.

As much as I deplore homophobia, I remain uneasy with Harry Hammond being made a criminal, for two reasons. First, he was expressing a political or religious or moral viewpoint, and freedom of speech, if it is to mean anything, has to include freedom to make offensive speech on such issues (no-one is likely to complain about inoffensive speech, which accordingly is unlikely to have its freedom curtailed). The proper response for anyone who disagreed was more speech, pointing out the flaws in his arguments.

Secondly, Mr Hammond by all accounts was otherwise a law abiding citizen, who simply outlived the mores of his time. I doubt all of us will be wholly immune from the same fate.

Dr Jeffrey John: religious office and employment discrimination

2012-01-30T16:41:00.005Z

Published on Halsbury's Law exchange here.

Religion, equality and the law has formed the subject of many blogs on this site in the past year or so. Once again the media have found a dispute which requires balancing the competing rights. It concerns Canon Jeffrey John, who has allegedly been passed over for promotion in the Church of England because of his homosexuality. According to the Guardian:

"Dr Jeffrey John … a celibate priest who is in a longstanding civil partnership with another cleric – was prevented from becoming the bishop of Southwark after the archbishops of Canterbury and York stepped in.

Reports on Sunday suggested John had become so exasperated at his treatment that he had hired… an employment and discrimination law specialist… to fight his case under equality law."

Although the competing considerations are many, the nub of the issue can be stated simply. As a starting point, everyone has the right to practice his or her religion. Everyone also has the right to do as they please with their own premises. Employers may choose whomsoever they wish for their staff.

As against that, everyone has the right not to be discriminated against on the basis of race, gender or sexual orientation.

The question is how to balance those rights when they conflict. On one hand, if a religious employer wants all members of her or his staff to be practising members of the religion, one might say that no outsider has the right to object. If the religion in question has particular moral tenets (and all do, almost by definition), then its followers would be expected to conform with them.

On the other hand, no non-religious employer would be allowed to implement an unlawfully discriminatory employment policy on the ground of a secular moral code. For example, a law firm specialising in criminal law could not insist on recruiting only male solicitors because the crusty old partners took the view that criminal law was “not a job for ladies” (as I once heard an elderly Rumpolesque barrister opine, not so many years ago).

So does the Church’s right to run itself according to its own tenets and beliefs trump Dr John’s right not to be discriminated against in his employment?

First we need to deal with a red herring, namely whether or not Dr John is actually an “employee”. It is no answer to try and be slippery about whether church office amounts to “employment”. Recently it has been held in a different context that the relationship between priest and bishop might be akin to employment (JGE v English Province of Our Lady of Charity and another [2011] All ER (D) 50 (Nov)). Either way, there is no doubting that but for the religious context there could be no evading anti-discrimination laws by the institution in question declaring that its office holders are not employees, any more than an employee could avoid income tax by using the word “subcontractor” instead of “employee” if there was no change to the underlying contractual arrangement.

It therefore has to be decided whether there is a valid distinction between Dr John’s case and that of the hypothetical female solicitor. In the US, the distinction would run on the following grounds: there is no link between being a lawyer and being a man. On no objective ground could it be justifiable to prefer men to women for the role of a solicitor. By contrast, the male-only priesthood is a manifestation of religious belief. Thus the hypothetical law firm would be engaged in discrimination pure and simple, whereas the church’s discrimination would be a consequence of its (religious) belief that the all-male priesthood derived from Christ’s choice of the apostles.

Some argue that there is nothing in Christian sources which supports a bar on homosexuals holding high office in the church. But that is not the point. It is not for the state to decide what a religion entails. Freedom of religion means freedom for religious organisations to decide for themselves what their belief system means. Moreover, the principle of separation of church and state (and for present purposes we can discount the establishment position of the Church of England) precludes the state from deciding otherwise.

That would be the result I would expect the English courts to reach, within the framework of the right to freedom of religion under Art 9 of the European Convention on Human Rights. As mentioned, it is also what the American courts have long held.

It is not, however, a foregone conclusion. The advancement of equality legislation renders it more and more difficult in this country to find exemptions from the general law on the ground of religion, as illustrated by the well-know recent cases about registrars refusing to conduct civil partnership ceremonies, employees wishing to display religious symbols, and fostering parents with strong religious views (though in a number of cases the tabloids predictably took the judgments to mean far more than they did in reality), on which I have written a number of blogs and articles in the past.

The reason I suspect equality legislation will not – and argue that it should not – be extended to the determination of the criteria of bishop or an equivalent post in other religions is that it would amount to the state rewriting religious tenets. In that scenario there would be very little left of religious freedom. It is true that the Supreme Court felt compelled to do something similar in respect of the well-known JFS case, in which it ended up effectively vetoing the Chief Rabbi’s definition of who was Jewish, so it is not beyond the realms of possibility that Canon John’s (presently hypothetical) case might produce a similar result.

But I suspect that the grey areas are likely to be confined to questions about what constitutes a religion, or which employees fall within the status of religious office holders and thus qualify for some sort of exemption from discrimination laws. (If the religion was some fringe cult, or the employee a support staff member not involved in dispensing any of the religious duties, then any religious exemption to discrimination law would be less defensible.) Neither would be in issue in any case brought by a CofE canon, since there is no dispute that a bishop is an ecclesiastical office in a recognised religion.

As ever, it is not a solution that will please everyone. But I very much doubt any solution will ...

Religion and the law in France

2012-01-11T11:05:00.000Z

Hypocrite that I am, I renegged on my promise not to write to the Times anymore. This letter was published on 9 January 2012

Mr Edward Carey (letter, 6 January) criticises France’s integration policy, and offers the burka ban as example of its flaws. It might be said that the problem in France is not the policy as such, but the failure to implement it. A glance at the ethnic ghettos in France and lack of minority representation amongst the French great and the good suggests that France might demand that immigrants become French but too often declines to treat them as such.

The burka ban was implemented not simply as part of a policy towards the immigrant community but rather the French concept of laïcité, or separation of church and state. I do not think the ban was a necessary consequence of laïcité, but nonetheless that concept if implemented consistently would apply equally to immigrants and indigenous alike, and would have avoided many of the disputes in Britain of the past few years about religious exemptions for minorities.

Botham and Lamb v Khan: Just not cricket

2012-01-10T17:00:00.000Z

I will be published in this week's New Law Journal on the libel action brought by Ian Botham and Allan Lamb against Imran Khan. The citation will be NLJ vol 162, 13 January 2012, p 70. The article will become available on the NLJ website next week.

John Terry, public order offences, sport and the law

2011-12-22T17:03:00.002Z

For Halsbury's Law Exchange
England football captain John Terry has been charged over alleged racist comments said to have been made during a Premiership football match in October. The details of the charge, set out in a CPS press release, are:

“On 23 October 2011 at Loftus Road Stadium, London W12, you used threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress which was racially aggravated in accordance with section 28 of the Crime and Disorder Act 1998.

Contrary to section 31 (1) (c) of the Crime and Disorder Act 1998”

As the case has not been heard I will say nothing more about its facts. Instead I will offer some observations on two related general issues prompted by the incident. The first concerns another aspect of s 28 of the 1998 Act, not raised in Terry’s case. The second concerns the general interplay between sport and the law, and the substitution of self-regulation for the criminal law.

Section 28 provides:

An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or

(5) In this section “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.

It might be suggested that abuse is abuse; and made none the better if it happens not to be directed at someone’s race. But human history is full of examples of the most appalling examples of abuse specifically based around race. There is therefore some justification in the context of the public order offence of harassment for special condemnation of abuse directed at someone’s race.

The more substantive controversy about s 28 concerns the inclusion of religious grounds on an equal basis with race. Certainly human history is at least as riddled with abuse of religions as it is with abuse of racial groups. Also, one of the world’s great religions, Judaism, classifies its adherents on matrilineal grounds, rendering it akin to a race (a factor which tied the courts in knots in the well-known JFS case), though nothing is offered here on whether Judaism is a race or religion or both.

The usual distinction offered is that religion is a set of ideas, which one may choose, modify or abandon, whereas one has no choice over one’s race. As a result, the right to freedom of speech in the form of the right to discuss, debate and indeed lampoon religion is a fundamental feature of a free society, but the same arguments cannot be applied to discussion of race. (That said, in the United States the right to free speech is valued so strongly that even banning racist hate speech is highly contentious.)

The counter is that for some people their religion is so intimately tied to their personal identity it has an equivalent status to race. This may be true for some, but it is not true for all, and more to the point it also has to be seen in the context of the sort of theocratic oppression found in other countries (and in the history of this country) which is inimical to a free society. Recognising that, and the importance of free speech generally, Parliament came up with the following when introducing the religiously aggravated element of the offence in the Racial and Religious Hatred Act 2006:

"Protection of freedom of expression

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”

(Section 29J in Sch 3 to the 2006 Act)

The problem should be immediately apparent. Very little that might be said to be an offence under the religious aspects of s 28 will not be plausibly argued to constitute protected speech under s 29J of Sch 3 to the 2006 Act. Then one has to factor in the right to free expression under Art 10 of the European Convention on Human Rights, though s 28 would likely fall within the state’s margin of appreciation.

Much the better option would have been not to have introduced the offence in the first place, and left any unjustifiable harassment to the general law. This would have meant aggressive harassment of an individual would have remained illegal, but there could be no attempted prosecution of satirical works of art or literature, and no attempt to suppress general public debate about the role of religion in society. Moreover, having fewer laws of this type would in some instances work in favour of religious believers who wished to advance controversial opinions based on their faith, such as the late Harry Hammond.

Turning to the second issue, where the divide falls between the right of a sporting body to self regulation and the application of the general law – including of course criminal law – is another classic grey area. Abusive behaviour on the pitch in the form of harassment of opposition players or the referee is hardly unknown in many sports. Then there are the occasional out-and-out physical assaults: for example, the footballer Roy Keane claimed in his autobiography that he had once deliberately injured the player Alf-Inge Haaland. That sort of conduct would constitute prima facie evidence of assault. Either way, self regulation of sportsmen could hardly be said to encompass a case of a sportsman attacking a spectator, such as Eric Cantona’s infamous kung-fu kick (though I cannot resist adding that it gave rise to one of the tabloids’ greatest headlines: The sh*t hits the fan), given that the spectator never signed up to the jurisdiction of any sporting body simply by attending a match.

Even if Keane’s actions might be appropriately punished by the football authorities themselves, it is hard to argue why an actual brawl such as the Kevin Tamati/Greg Dowling encounter known to all antipodean rugby league followers, which took place off the pitch after both had been sent to the sin bin, should not attract the interest of the CPS if public order offences under the 1998 Act do. Admittedly most rugby league players, especially of that era, would have thought it demeaning to refer their disputes to the police, but as the law student favourite of R v Brown [1993] 2 All ER 75 held, consent is no defence to an assault occasioning actual bodily harm (though it does seem to be in the case of boxing ...).

Next one might consider actions such as blatantly faking a penalty. A player might be disciplined for doing so, but would that be adequate punishment – let alone sufficient redress for the opposition – if it altered the result of the match (say it was an extra time penalty in a knock-out competition) with huge financial consequences?

There is neither space nor time to discuss the issues fully here, and I would stress again that I have offered no opinion on Terry’s case, which has to be conducted according to the law as it stands at present. All that one might conclude is that the dividing line between self regulation by sporting bodies and the general law is somewhat less than logical or principled.

The fugitive: Roman Polanski

2011-12-09T14:24:00.000Z

I have been published in this week's New Law Journal (Vol 161, 9 December 2011, p1714) on the libel action of Roman Polanski from earlier this century.

Riot sentences - a response

2011-12-04T16:20:00.002Z

Published in Criminal Law & Justice Weekly, Vol. 175, December 3 2011, p 721

Recently in CL&J (p.596, ante), Caron Thatcher and Emmanouela Mylonaki of London South Bank University considered the sentences handed out following the August riots in London and elsewhere. The theme of their article was that some of the sentences were disproportionately high, at least in the case of offences not involving violence. It seems to me, however, that there are indeed reasons particular to riots which do justify higher sentences than ordinary incidents of public disorder or theft.

Continue reading here.

Fair trials and the freedom of the press: when fundamental principles conflict

2011-11-24T14:51:00.000Z

Published on Halsbury's Law Exchange here.

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.

Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press.

One very recent manifestation of that inherent conflict concerned a blog by a well-known political commentator about the Stephen Lawrence murder trial. The blog has been referred to the Attorney-General for consideration for prosecution for contempt of court. As the trial is still in progress nothing more will be said about it.

A recent occasion on which the courts had to consider the same issue, however, was the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug), which arose out of the murder of Joanna Yeats at the end of 2010.

Police attention was initiallyfocused on Miss Yeats’ landlord, who was arrested but released without charge. Before suspicion had been lifted however, some elements of the press printed all manner of lurid allegations about him. In the event those mattered not, since the real murderer did not dispute the fact of having killed Miss Yeats. It was held however that if the landlord had faced prosecution, he would have been able to raise a serious argument that he could not receive a fair trial because of this adverse publicity. Even though the argument would probably have failed, it would have been properly made and therefore would have incurred tangible costs and delays to the trial process, and a possible ground of appeal.

Accordingly, even the most robust defenders of freedom of speech would have to concede some limitations on the right of the press to influence an extant trial.

The Yeats decision raised some important points about the present state of the law, and points for reform. What it did not consider, however, was the possible influence – not for the good – of the internet. As I wrote in an article on the case for Criminal Law & Justice Weekly, one of the central planks of the publishers’ defence was that the articles would have faded from the jurors’ memories by the time of the trial. But articles would still have been readily obtainable online.

Moreover, no prosecution for contempt of court will be possible in the case of articles published overseas, although they may be readily accessible to British citizens. For the same reason I have always suspected that superinjunctions for privacy would be a flash in the pan, since anyone minded to do so could expose material which is the subject of an injunction with impunity if they were based outside the jurisdiction.

It can only be hoped that the fair trial process is not destroyed in that fashion. For all of the arguments in favour of free speech, one can find many instances of tabloid journalism grossly interfering with justice. One thinks of Hollywood circuses from the Fatty Arbuckle scandal of the 1920s (see New Law Journal [2011], vol 161, p 1150) to the OJ Simpson fiasco of more recent times: few would wish to see justice conducted – and corrupted – in the same manner in this country.

Cricketing convictions

2011-11-15T19:46:00.001Z

Published on Halsbury's Law Exchange here

Recently three Pakistani test cricketers, Salman Butt, Mohammad Asif and Mohammad Amir, were convicted of conspiracy to cheat at gambling and conspiracy to accept corrupt payments, arising out of Pakistan’s tour of England in 2010. They were sentenced to 30 months, 12 months and 6 months’ imprisonment respectively (Amir having pleaded guilty). Butt has recently lodged an appeal against sentence. Regrettably, although it is the first such prosecution in the UK, only a delusional optimist would assume it will be the last. It therefore falls to be considered whether the sentences were justified.

The convictions arose out of a sting by the News of the World newspaper in August 2010. Cricket, being amenable to extensive statistical analysis, perhaps more than any other sport, lends itself to “spot betting”. Aside from betting solely on the outcome, any number of bets on the procedure of the game are possible – how many boundaries will be hit during the course of the day; who will be the highest or lowest scorer in each innings; how many extras will be bowled and by whom; and so on – in other words, all the minutiae which fills many pages in Wisden Cricketers’ Almanack each year and considerable amounts of data on websites such as Cricinfo as well.

In turn the endless possibilities make it much easier for the unscrupulous bookmakers to try and rig bets. It would be one thing – and hopefully a difficult one – to persuade an individual player to throw his wicket, still less an entire team to throw a match. Even if a team could be so persuaded, it would take some considerable effort to throw a match without arousing suspicion. It would be much easier on the other hand to persuade someone not to score a boundary off a particular over in a test, which potentially can run to 450 overs, or to bowl a wide or no-ball off a particular delivery. Such would usually – but not always, as we shall see – be inconsequential.

These possibilities gave rise to the three prosecutions. The News of the World filmed a sports agent, Mazhar Majeed, counting bribe money and stating that Asif and Amir (both fast bowlers) would bowl no-balls at specified stages of the Lord’s test. In the event both did exactly as Majeed predicted. They were not marginal no balls either: the television commentators expressed bewilderment at the extent to which Amir in particular had overstepped.

No balls are, of course, commonplace in cricket, particularly amongst fast bowlers, but the odds against predicting exactly when they will occur would be almost impossibly high. Five hundred and forty balls will be delivered in the course of a normal day’s test cricket, and the only credible explanation of both players doing exactly as Majeed said they would is that they were indeed in his pocket.

It followed necessarily that Butt had colluded in the affair, because, as captain, he alone had the power to decide who would bowl and when.

Initially cricket’s governing board, the ICC, conducted its own investigation, and went on to impose bans of ten years for Butt (of which five were suspended), seven years for Asif (of which two were suspended) and five years for Amir. The criminal prosecution then followed. (Majeed was also convicted after pleading guilty and received the longest sentence of all, but this article is confined to the cricketers themselves.)

The result of the ICC’s ban coupled with the sentences of imprisonment is likely to be the end of Butt’s career. At the very least Asif’s will be seriously curtailed. Only Amir, aged 19, seems likely to play again.
The question thus arises as to whether the offences justified penalties that are personally and professionally ruinous, along with the other consequences of imprisonment.

The answer has to be a resounding yes, for two reasons. The first is the recent history of corruption in cricket. The second is that despite some differing views, it seems to me unarguable that even the slightest spot fix seriously undermines the game.

As to the first of those reasons, many cricketing correspondents have enjoyed displaying their historical knowledge by pointing out that cricket’s origins as an organised sport in something like its modern form lie in an excuse for gambling (see, for example, Reverend Pycroft’s The Cricketer’s Field, written in 1851).
Corruption of the sort with which Pycroft was concerned had long died out by 1981 when inveterate horse racing fans Lillee and Marsh famously induced a frosty atmosphere into an already gloomy Australian dressing room by revealing a successful bet on England at 500-1 odds at Headingly. That was properly seen as an innocent if very poorly judged act on the part of the two players.

Modern match fixing and spot-fixing began a few years after the surge in interest in cricket on the subcontinent which accompanied India’s victory in the limited overs World Cup in 1983. It reached world attention in the early 2000s when the-then South African captain, Hanse Cronje, was found to have accepted a string of payments for distorting matches. Two senior Australian cricketers, Shane Warne and Mark Waugh, were also found to have had some contact with a bookmaker in the 1990s – most ill advisedly suppressed at the time by the Australian cricket authorities – although it was not suggested they had agreed to alter matches, only that they provided useful information about conditions and players. But it was clear that the involvement of bookmakers with cricketers could not be dismissed as occasional skullduggery on the subcontinent which the rest of the cricketing world could pretend to ignore.

The ICC’s response included an inquiry by a former senior British police officer, Sir Paul Congdon, but although the issue drifted from headlines only the most hopeless optimist would ever have assumed that the problem had gone away. The true extent can of course never be known. But we now have judicial confirmation that it still very much exists, and constitutes the first reason why the courts have to respond with stiff sentences as a deterrent.

The second reason is that even apparently insignificant actions such as a no-ball here and there can have a strong influence on the outcome of a match. Not all have seen it that way: in the immediate aftermath of the match at Lord’s, a former President of MCC, Field Marshall Lord Brammall, struggled to see what the fuss was about. On 31 August he wrote to the Telegraph in these terms:

“It was most regrettable that this incident was alleged to have happened in the fourth Test … Let no one, however, try, as I am afraid some have tried to do, to consider this a significant part of the game itself, impinging on the historical reputation of this test match.

The delivery of the odd obvious no-ball would not and did not change the course of the match or the outcome.”

Lord Brammall seems to have forgotten many a famous no-ball of test matches past. To take just one example (a genuine no ball in a series which has never had any suggestion of wrongdoing): in the fourth test of the 2005 Ashes series, Michael Vaughan was bowled early on by a no-ball; he went on to score 166, the highest score of the match, and thus the fact of Glenn McGrath overstepping had a considerable significance.

But the point is wider than that. As the judge inferred, if the fact of the Pakistani fixing has not cast a pall over every future international fixture, it will at least cause a question, or suspicion, to be raised every time something extraordinary appears to take place; and of course a central part of the enjoyment when watching sports is witnessing extraordinary events – the tragic dropped catch, the farcical run-out, the ill-judged moment after a day’s solid concentration, and so forth. In those circumstances substantial terms of imprisonment were, rightly, inevitable.

Impossible to employ

2011-11-02T14:11:00.003Z

Published on Halsbury's Law Exchange here.

Last week Stephen Levinson wrote about the law making process, and in particular the problems which bedevil the creation of employment law.

Mr Levinson identified four structural reasons behind the problems with employment law making: (i) responsibility for employment law is spread between four separate departments; (ii) civil servants continuously move between departments, denuding them of knowledge and experience; (iii) new statutes are almost invariably followed by statutory instrument after statutory instrument; and (iv) there is often inadequate consultation.

These are all valid points, and no doubt applicable to many other areas of law. I would venture to add two further points. The first is that much employment law is now made in Europe. Complex directives have to be transposed into national law. The last say on their interpretation is not that of the domestic courts but rather the European Courts. Whether they make good or bad decisions, the fact remains that the process by which employment laws are made, and by which answers to employment questions are reached, is rendered more complex, slow and expensive by an extra layer of regulation emanating from the European Union. For large companies able to retain expensive advice this may be manageable, if inefficient; for smaller firms it may be unmanageable and a disincentive to hire more staff. For both employers and employees it will make knowing their rights all the more difficult.

The second point is the most fundamental as well as the most obvious: it is policy that produces complexity. Employment law is overly complex because lawmakers are always tempted to try and micromanage employment relations. No doubt this is (usually) done with good intentions. One often hears employment rights being described as “fundamental”. In many instances I would not disagree – it is not as though anyone would or should advocate returning to a Victorianesque world of chimney sweep wages and conditions set entirely by the free market. I would however make three observations.

First, all employment rights, fundamental or otherwise, are wholly irrelevant to a substantial portion of workers, namely the self-employed. The likes of public holidays, sickness and maternity leave, the minimum wage, working time regulations and so forth mean nothing to the self-employed. Of course that does not undermine the need for protection of those who are employed from being exploited. But the more complex and costly it becomes to hire someone will, as mentioned, make employers more reluctant to hire new staff.

Secondly, complex provisions harm, not help, vulnerable workers. They will not be able to afford the increasingly expensive advice about their rights, nor will any employment litigation be resolved as quickly or efficiently as it might be otherwise. They will find it harder to obtain work because many employers cannot face the red tape and uncertainty that complex employment law brings and will decide against expansion accordingly.

Thirdly, it is not as simple for the state to play Robin Hood as some recent employment decisions seem to assume. For example, the European Courts ruled recently that employees who are sick during their holidays should be able to claim the time as sick leave, thus preserving their holidays. One can see the superficial attraction: if a certain amount of paid leave (holiday) is considered a “fundamental right”, then ensuring that employees retain the benefit that leave irrespective of the misfortune of illness is a logical step. However, a right can only exist if someone else assumes a corresponding duty, and in this case obviously the duty has to be that of the employer. The employer must therefore assume a greater duty.

The problem is of course that employment relations are not static. Employers can be expected to respond to the increased (but uncertain) costs that they will face by any or all of the following measures: negotiating lower wages, paying shareholders lower dividends, or raising prices. At least two of those will affect employees directly (with their own wages, plus the fact that, as consumers, they will have to pay higher prices that other companies impose in response to the ruling) and all three will as well in the case of employees who are also shareholders. It also gives dishonest employees an incentive to claim sickness at opportune moments in order to extend their holiday entitlement, which of course will be at the expense of the honest employees who will be left sharing the increased costs and also covering for the unscrupulous. Arguably, therefore, it would have been better for the state not to have intervened at all in that case.

As Mr Levinson concludes there is no silver bullet. But one does hope that his suggestion for greater thought to be given to the law making process is taken on board by the Cabinet Office. Improving employment law is a difficult task, but that makes it more, not less important.

End of the beginning

2011-11-02T14:10:00.002Z

I have recently changed roles at LNUK and am now Managing Editor of the Journals & Magazines department. The handover period rather got in the way of any articles and blogs, but something close to normal service should now resume.

The ties that bind us

2011-10-15T22:29:00.000+01:00

Published on Halsbury's Law Exchange here

Prime Minister David Cameron made quite a few headlines with a passage in his recent speech to the Conservative Party Conference. Having stated that he was “consulting on gay marriage”, he went on to say:

"Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

Adam Wagner has a helpful post on the UK Human Rights Blog here. It is also a subject I have written on previously for HLE.

Mr Wagner’s post sets out the background. It seems to me that we have reached the point where Mr Cameron poses the question by having proceeded through three primary issues. The first issue was that the legal rights that marriage has long conferred, in the form of property, inheritance and so forth, were seen to discriminate against those who could not legally marry. The concept of civil partnerships was therefore created in order to provide same-sex couples with the same legal rights.

The second issue concerned the right of registrars to refuse to conduct civil partnerships on religious grounds. They were not permitted to refuse, though there may be more litigation to come on that point.

The third issue was whether religious premises should be permitted to host civil ceremonies. The law giving effect to this (s 202 of the Equality Act 2010) has not yet come into force.

We have therefore now reached, or are about to reach, the stage where civil partnerships have the same legal status of marriage; that no registrar can refuse to conduct them on religious grounds; and that religious groups may choose to host civil partnership ceremonies (but may not be forced to do so).

Two side issues arise. One is why civil partnerships have to be restricted to same-sex relationships akin to marriage: some siblings may choose to live together in a chase relationship all their lives, but they will not be permitted to enter into either a civil partnership or a marriage. The second concerns whether religious groups will always be able to refuse to conduct civil ceremonies on their premises. As enacted s 202 of the 2010 Act specifically provides that

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”

but obviously enough there will remain the possibility of change in the future as some religious groups fear.

Leaving those issues aside, however, brings us to Mr Cameron’s urging of the final step, with the end of the ban on same-sex marriages.

The fact that civil partnerships have the same legal status in domestic law is not a complete answer. The word “marriage” carries a deeply and sincerely held meaning for many, and has an ancient pedigree. We should not lightly dismiss those who object to changing it.

On the other hand, the very fact that the word carries powerful connotations gives weight to the argument that it should not be denied to those who want it. Pink News makes both of those points:

Religious gay people want religious ceremonies – something the law does not currently allow. Others, who may be religious or secular, crave the gravity and recognition the word marriage offers.

There may be no difference in the rights and benefits received by those in civil partnerships, but to be married is to make a statement – to your partner, to your loved ones, to the world.

Additionally, some straight couples ... want their relationships recognised in law without what they see as the patriarchal, traditional overtones of marriage. There is discrimination here too, as legally, they cannot have a civil partnership.

Mr Wagner in the article linked aove quotes one of the opposing viewpoints:

The Scottish Catholic Church has said it will fight the proposal in Scotland, arguing that the government did not have a mandate to “reconstruct society on ideological grounds”.

Aside from the emotional, religious and sentimental implications of the word “marriage” (which as mentioned should not be underestimated), there is the question of overseas recognition of marriages. The British concept of civil partnerships will not necessarily be recognised by foreign states should a couple emigrate. Then again, simply giving homosexual couples the right to use the word “marriage” will not necessarily mean that their marriage would be recognised abroad, at least not universally.

Personally I would not object to the term being extended to allow same-sex marriages. In the past there have been taboos – primarily social but in certain countries at certain times also legal – on mixed race or mixed religious marriages. We in Britain in the present day rightly disdain such discrimination. Further liberalizing the term to allow same-sex marriages is not, in the present context, illogical or unfair: if anything it would be the opposite.

One objection always raised is that of the “slippery slope”; if we allow x then y and z will follow. That is never a sufficient argument of itself, however. Unless we ban everything or nothing we are always on a slippery slope of sorts. No doubt some will argue that allowing gay marriage axiomatically should allow any other form of relationship – siblings, polygamy, bestiality – to marry as well; but that no more follows than to say that if homosexual marriages are prohibited so should secular marriages.

But it is fair to say that the issue is far from straightforward. In turn that means that Mr Wagner is correct that this is a matter for Parliament, not the courts (whether in this country or in Strasbourg).

I would finally reiterate the suggestion I made in the article linked above, namely:

“… a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved. Then since the ceremony would be akin to a private party or religious observance: no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets."

Such a solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

It is never possible to please everyone, but it seems to me that the solution proffered would come the closest to doing so.

When the press oppress

2011-10-07T17:17:00.000+01:00

I will be published in next week's Criminal Law & Justice Weekly on the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug). The citation for the article is Criminal Law & Justice Weekly, vol 175, 17 September 2011, p 591.

The opening two paragraphs are reproduced below, and the article will be accessible in due course on the CL&J website (link on the left hand side of the page):

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.

Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press. Balancing the competing principles formed the basis of the recent case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).

English riots - appropriate sentences

2011-09-26T22:27:00.005+01:00

A short comment on sentencing the rioters, published on Halsbury's Law Exchange

Sentencing rioters will take place against a backdrop of public anger and media outrage. In any such instance it is important that the rule of law applies and the court is not swayed simply by the unpopularity of the offender or offenders before it.

That said, two factors come into play as part of the application of the law. First, it is a normal part of the sentencing process to weigh aggravating and mitigating factors. In the case of the rioters, taking advantage of the police being overstretched will not tell in an offender's favour, though it might be a mitigating factor if one could argue that an offender was normally a law abiding person who acted spontaneously, rather than a career criminal.

Secondly, deterrence is a legitimate sentencing objective, and discouraging the public from starting civil unrest or taking advantage of it for criminal purposes is a factor not present in ordinary theft cases. On that basis, rather than the more crude goal of retribution, longer sentences for rioters can arguably be justified. (Not that retribution is wholly irrelevant to sentencing.)

One other aspect that the rioters give rise to is the cost and other resources associated with a large increase in offenders. It will be tempting for more lenient sentences to be passed, and a greater proportion to be non-custodial, simply on the basis that the country is struggling to accommodate prisoners as it is. Of course in theory this should have no impact. One wonders if it will be the same in practice.

The delight of everyone

2011-09-23T21:54:00.000+01:00

I have been published in the current issue of the New Law Journal, on Lord Denning's most perfectly crafted judgment. It can be found online in the NLJ blog under The delight of everyone

No freedom of speech

2011-09-18T18:40:00.002+01:00

Published in Criminal Law & Justice Weekly, Vol 175, September 10, 2011, p 527

When discussing religion and the law in this journal and elsewhere, I have consistently argued for free speech and for a complete separation of church and state. The counterpoint that others have expressed is that religion has been subordinated to other rights such as gender and sexual orientation.

I would maintain that the approach I have advocated is equally applicable to defending religion. I have been asked for some examples in support of that proposition. One obvious one concerns the sad tale of Harry Hammond’s street protest in Bournemouth in October 2001. It also provides a classic illustration of freedom of speech in the context of religion.

Continue reading here

Court on Camera

2011-09-07T17:20:00.000+01:00

Published on Halsbury's Law Exchange here.

The ban on filming in courts is to be overturned in part, according to an announcement by Justice Secretary Ken Clarke. (Mr Clarke is also Lord Chancellor, though in the modern watered-down version of that office he does not call himself Lord Clarke and does not sit in the House of Lords. The resultant incongruity should be a lesson to those who attempt constitutional reform in haste, or even at leisure.)

At present filming is only allowed in the Supreme Court. Under the new measures broadcasting will initially be confined to the Court of Appeal, with the Crown Court to follow. The changes will require modification of the relevant statutory provisions, namely s 41 of the Criminal Justice Act 1925 and s 9 of the Contempt of Court Act 1981.

Filming of the Crown Court will be restricted to judges’ summary remarks, with victims, witnesses, offenders and jurors excluded (who do not feature in the Court of Appeal anyway).

I have long been in favour of allowing television in court, for the simple but compelling reason that justice has to be seen to be done. It is one of the cornerstones of English justice that any member of the public can attend court and observe proceedings, subject to only a few narrow exceptions where the interests of justice require the public’s exclusion (sex abuse or child cases being the obvious examples, though the family courts have become more open of late, to some controversy in both directions). There is no difference in principle between sitting in the public gallery watching proceedings and watching them on television. If one is a fundamental right then it is an uphill battle to justify the prohibition of the other.

On the UK Human Rights Blog Adam Wagner observes:

The success of Supreme Court Live has made it difficult to argue that Court of Appeal hearings, which are similar in that they do not generally involve live witness evidence, should not also be broadcast. Given that there are many more hearings than in the Supreme Court, which tends to hear 1 or at most 2 cases at a time, it is to be hoped that the Ministry of Justice will consider allowing hearings to be watched after the event as is the case on the Parliament Live TV website.

I would respectfully agree. I am no technical expert but it does not seem to me that with modern technology it ought to be overly expensive or otherwise difficult for hearings to be recorded and archived, and indeed to be made available online free of charge thereafter.

Of more substance are the concerns which Mr Wagner has about criminal trials:

There are other arguments against broadcasting criminal trials which I have dealt with in a previous post. They are, in summary,

1. Televised justice leads to soundbites and sensationalism, and edited highlights of a case lose the subtlety of legal argument

2. Television fosters disrespect for the court

3. Cameras pervert the trial process as juries become star struck and lawyers grandstand

4. Victims and witnesses are intimidated and can be less safe as a result

These are serious points deserving of a much greater response, but my initial thoughts are as follows:

1. This is true, but no more so than any other form of case reporting. Extracts from written judgments are often taken out of context, and reports of witness or other aspects of court proceedings are often written in a sensationalist fashion. If there was a central record of the full proceedings on an accessible website then anyone concerned about a news report could watch the whole proceedings and decide for themselves.

2. Potentially, but not certainly, if editors behave themselves and there is a full-length unadorned archive version for anyone serious about forming an opinion. Moreover, once again there is no real difference from other forms of media reporting of courts and proceedings.

3. This is a proper concern. OJ Simpson is the obvious example of television perverting a trial, but as the Fatty Arbuckle scandal shows, “yellow journalism” has been perverting court proceedings for as long as there has been such a thing as the media (even if the right result was eventually reached in Arbuckle’s case).

More recently, the tabloids were sharply brought to book for their antics with the initial suspect in the Joanna Yeates murder, as I have written about for a forthcoming issue of Criminal Law & Justice Weekly. But there is no question that judges will have a serious task in trying to ensure that neither lawyers nor jurors are influenced by the fact of the proceedings being broadcast on television, especially in high profile cases.

4. This is also a proper concern, hence Mr Clarke’s announcement that filming in the Crown Court will be restricted, at least initially, to judges’ summary remarks. If it is made clear that witnesses will not be broadcast, or perhaps not without anonymisation by pixellation and voice-altering, then the concerns should mostly be met.

With the caveat that each of the four issues will require further consideration, I remain of the view that none of them are insurmountable and that the principle of open justice should prevail. Mr Clarke’s announcement is therefore an important step in the right direction.

Herpes: Don't pass it on ...

2011-08-24T07:42:00.001+01:00

Published in Halsbury's Law Exchange here. I have not managed to find an appropriate picture.

Two things of perennial interest to the tabloids are crime and sex, jointly or separately. It is therefore no surprise to find a story involving both in the Daily Mail. One David Goulding pleaded guilty to grievous bodily harm after knowingly giving a former girlfriend, Cara Scott, genital herpes. He had known he was infected but did not tell Miss Scott until just before the relationship ended, by which time she had already contracted the disease. He was sentenced to 14 months’ imprisonment.

In legal terms the matter was straightforward and uncontroversial: by Mr Goulding’s conscious action Miss Scott was exposed to the disease without her knowledge, and the eminently foreseeable consequence came to pass; hence the guilty plea. It is however worth responding to reported comments by spokespeople for what is called the Herpes Viruses Association. According to the Mail article:

Nigel Scott, spokesman for the Herpes Viruses Association, said Golding’s sentence was ‘outrageous’ and compared the case to prosecuting children for ‘giving their friends chicken pox’.

He added: ‘It is such a trivial infection that most people don’t notice it. It has exactly the same medical implications and consequences as an ordinary facial cold sore.’

Marian Nicholson, director of the HVA, added: ‘Many of those who are diagnosed are reluctant to disclose their status but this is because of the unnecessary stigma, not because it is serious ... emphatically it is not.’

There are two points. First, the intentional – or reckless – transmission of an infectious disease by the very specific act of sexual intercourse is not of a piece with the accidental transmission of chicken pox by virtue only of being in proximity to someone else. The former is eminently avoidable and properly described as intentional or knowingly reckless; the latter rather less so, unless I suppose one’s imagination contrived a situation where a person deliberately initiated as much contact as possible so as to render the transmission of something like chicken pox almost inevitable.

Secondly, there would or should be no stigma attached to the victim in the circumstances of Miss Scott, any more than any other innocent victim of a crime, but that has nothing to do with prosecuting the offender. No-one should look down on someone with a broken leg but they should certainly prosecute the person who inflicted it. In Mr Goulding’s case, however, any concern he might have had about his stigma ought to have been less important than his obligation to inform Miss Scott of his condition. The aforementioned association might think the condition trivial but I rather suspect most people would prefer not to contract it, and to be warned of any risk accordingly.

Law and Libya again

2011-08-22T18:54:00.001+01:00

Published on Halsbury's Law Exchange here and reproduced on Legal Week here

Now that the Libyan conflict seems to be drawing to the end, or at least the end of its present phase, it might be appropriate to consider the legal aspect of NATO’s involvement.

The first question involves the nature of the Western intervention. In this respect, imagine that a Predator drone, controlled by a foreign state, circles above the White House looking for President Obama. It fires a hellfire missile but misses the President and kills a couple of innocent civilians instead. The foreign state then issues a statement saying it is sorry about the civilians but Obama’s position is untenable and the drones will keep coming until he leaves office.

It is not difficult to imagine the response from the White House. President Obama would make a speech evoking the stirring rhetoric of President Roosevelt’s post-Pearl Harbour address, and the television news would soon be flooded with images of American forces setting off to unleash retribution.

Suppose further that the responsible state was not acting alone, but was receiving technical, material and intelligence assistance from another state. If so, that state would also find itself on the Pentagon’s target list.

The ensuing clash of arms might be called many things, but no-one could argue that it would appropriately be called a “war”.

I make that rather laboured point because of the startling position the White House took on Libya. In a detailed document prepared in June, the White House asserted that because the US forces involved were only playing a “supporting role”, they were not engaged in “hostilities”.

Accordingly, the argument ran, the definition of “hostilities” as described under the War Powers Resolution of 1973 had not been met. That resolution, part of the fallout over the Vietnam War, requires Congressional approval for any deployment of US forces in hostilities for more than 60 days. The White House said that its forces in Libya are not engaged in sustained fighting or “active exchanges of fire with hostile forces”.

With the caveat that I am not an American lawyer, that argument seems entirely fallacious. The governments responsible for the intervention made clear early on that Gaddafi’s regime could not continue.

NATO’s operations began after UN Resolution 1973, which was passed when it was thought a slaughter of citizens by Gaddafi’s troops was imminent, the sanctions and other measures brought in by Resolution 1970 having failed to prevent the civil war. Initially the intention was to establish a no-fly zone, then to use “all necessary measures” to defend civilians. In turn the coalition took it to mean that Gaddafi’s regime had to be removed.

We therefore went from attempting to prevent a massacre in a particular time and place to attempting to overthrow a sovereign government by the use of military force. The latter in anyone’s language is a war. The fact that our involvement has been limited to naval blockading and acting as the rebels’ air force is not relevant: we have been deploying armed forces in active operations. Rumour has it that we or our coalition partners have supplied weapons to the rebels as well and it seems a shade implausible that there have been no special forces operations in the area.

The only distinction that the White House offered was that there was no danger to American servicemen. That was a matter of good fortune for them, but to suggest that their operations were not thereby a “war” strains logic beyond breaking point. As I tried to show above it is an argument that would cut no ice in the other direction.

We have therefore been, pace President Obama, and continue to be, at war with the sovereign government of Libya. A number of serious questions then arise. For a start, even if the war is legal, what was the legal imperative for the UK’s involvement? What of all the other states who supported the resolution?

The second question concerns the moral justification. If on the balance of probabilities military intervention would save more lives than it would cost then it might well be justified. Needless to say that is difficult to judge, to say the least.

It is true that the fact that we are selective in our use of force by not intervening in, say, Syria, is not an argument against intervening in Libya: if I fail to save ten drowning people it would still be morally correct to save the eleventh, even though I am being inconsistent by doing so.

Apparently we intervened to stop a massacre of civilians by Gaddafi’s forces in Benghazi. Apparently we succeeded. But it also seems that we have little clue as to what happens next. There was no doubt a hope that Gaddafi would flee once Western air power was deployed against him. That faded quickly, to no-one’s surprise: air power tends not to do that.

However, it now seems that Gaddafi is indeed about to fall. What then are our obligations in international law, having toppled him? What plan is in place for a substitute government? What if an Iraqi-style internecine civil war erupts? I have yet to read reassuring answers to any of those questions.

One can easily understand why our leaders support the notion of “liberal intervention”. It is their best chance of being remembered as a statesman rather than a jobbing politician. It is no doubt more professionally rewarding flying to Washington on a private jet and making speeches at the White House than trying to deal with more mundane matters such as the NHS budget, another bank failure or a school closure. But the executive should also consider that if international law is fraught with uncertainty, military action is too, and inevitably risks the most severe consequences in terms of blood and treasure. And if there is one lesson from Iraq, it is surely that removing dictators is only the very beginning of what might be a long and difficult story. Perhaps there will be a smooth transition from Gaddafi to a democratic government supporting human rights and the rule of law. Or perhaps there won’t be.

Template for the pitfalls of fame: the Fatty Arbuckle scandal

2011-08-12T10:21:00.002+01:00

I have been published in the New Law Journal Vol 161, 12 August 2011, p 1150 on the trials of Fatty Arbuckle. It can be found here.

Andrew Turner MP and the death penalty

2011-08-08T08:20:00.003+01:00

For Halsbury's Law Exchange, published here

According to the BBC, Conservative MP Andrew Turner is attempting to resurrect the death penalty, if that is not a contradiction in terms. The BBC reports that Mr Turner has said that a full Parliamentary debate should take place about whether the death penalty should apply to those who kill children or police officers. He is endorsing an e-petition to that effect started by maverick blogger Guido Fawkes aka Paul Staines.

It is no great surprise to see something controversial from Staines, who takes pride in stirring up Westminster. It is however surprising to see a sitting MP run with something as tired and improbable as the death penalty, which I had assumed existed in Britain nowadays only as an Aunt Sally for jurisprudence tutorials.

Staines’s petition seeks a “review of all treaties and international commitments which may inhibit the ability of Parliament to restore capital punishment”. These alone would be a formidable obstacle given that in 2003 the UK acceded to the 13th Protocol to the European Convention on Human Rights, which prohibits the death penalty under all circumstances.

There is always a certain level of public support for capital punishment, usually on the ground of retribution – as indeed seems to be Mr Turner’s motivation. Some even think a murderer should be killed by precisely the same means as they inflicted on their victim (raising two interesting questions: (i) who gets the job of carrying it out on behalf of the state; and (ii) what of serial killers?).

But I doubt a majority of the population remains in favour. Even if they were, I would hope that Parliament stands firm and resists reintroducing the death penalty. The whole concept of human rights is to provide a constraint on the power of the legislature; the majority rarely vote for their own oppression.

I say this because the arguments against the death penalty are legion and compelling. The first is the possibility of an innocent person being executed. Timothy Evans is the obvious example and indeed was an important factor in the abolition of the penalty. Mr Turner counters:

"Like many people I have concerns about the possibility of wrongful convictions, so perhaps we should consider whether before a death sentence could be passed, a higher standard of evidence would be needed than 'beyond reasonable doubt' which is used to secure a criminal conviction.

"Some people have suggested that there should be proof 'beyond the shadow of a doubt' before a death sentence ..."

Defining what would constitute “beyond the shadow of a doubt” as opposed to “beyond reasonable doubt” would be an interesting challenge for the most talented legislative drafters. It might simply mean that no-one would ever end up being executed anyway. Historically cases have shown that not even explicit confessions by the supposed killer guarantee certainty (they may have been forcibly extracted, or the confessor might be mentally disturbed in a way that is not immediately apparent). DNA evidence was thought to be the holy grail of criminal evidence when it was first developed, but it whether it would or would necessarily amount to removing the last “shadow” of doubt is questionable.

The second argument is that the death penalty is little deterrent to crimes that are committed in the heat of the moment, and in all cases is less important to any prospective murderer than the chances of getting caught. I am dubious about the various statistics that get bandied about supposedly in support of the argument that the death penalty leads to a reduction in the number of murders; there are so many factors involved in the commission of crimes rate that one has to say at least that the statistics are not compelling. They certainly would not meet Turner’s “beyond a shadow of doubt” standard.

The third and most important argument is that retribution as blunt as the death penalty does not really belong in a civilised society. There is no “humane” method of execution for a start. Moreover, it is highly questionable whether the death penalty is a greater punishment than life imprisonment (some might prefer death to squatting in a cell forever). For the sort of crimes Mr Turner has in mind whole life orders are a real possibility; indeed murderers generally receive much higher tariffs nowadays than two decades ago.

I was not a fan of rewriting history to overturn the verdict against Derek Bentley, for example, or the soldiers executed in the Great War (the former had his conviction posthumously quashed – though he would potentially have faced a retrial if still alive; and the latter received a sort of watered down pardon, with convictions intact, by Parliament in 2006). They were tried and punished in accordance with the standards of their time, and it seems wrong for any number of reasons for later generations to be expending public resources declaring that they know better.

But the point is that standards, attitudes and values have changed. We do not now clamour to attend public executions. We rightly deplore the standards of punishment in some extremist theocracies, as well as the standards of prisons in many countries. Hopefully therefore we can exact punishment without stooping to a murderer’s level.

Vance v Judas Priest, or (Not) Breaking the Law

2011-07-26T10:44:00.014+01:00

Published in the New Law Journal, Vol 161, 15 July 2011, p 994

Much of my youth was mis-spent listening to heavy metal bands from the 1970s and 80s. Since then I have found it amusing watching the genre go from being called a prime factor behind the decline of Western Civilisation to its saviour.

The redemption has come from a realisation that the bands, or the better ones at least, were actually proper musicians who played according to traditional methods, as opposed to manufactured pop or the sort of unmusical noise which finds favour amongst my teenage neighbours. And yet it was once a common contention that all the imagery around swords, sorcery, devils and the undead one finds throughout the metal canon constituted unmitigated evil, or at the very least was not suitable for children.

In 1990 that argument reached its zenith – or nadir – when the veteran British band Judas Priest were sued in the United States by the parents of one James Vance. The action followed an attempted double suicide by Vance and his friend Raymond Belknap. Belknap died but Vance survived with serious injuries (though he died three years later). Both had consumed marijuana and alcohol immediately prior to the incident, and had generally led troubled lives for many years. Despite that history Vance’s parents formed the view that the suicide attempt had resulted from the pair listening to the Priest album Stained Class. They issued proceedings against the band seeking damages accordingly.

The first hurdle that the plaintiffs faced was the robust protection of freedom of expression provided in the US by the First Amendment to the Constitution. The strategy they adopted was to argue that there had been “subliminal messages” on the album, which should not qualify for First Amendment protection because the recipient would be unaware of them: there would be no exchange of information or other functioning of the marketplace of ideas, nor expression of personal autonomy, nor any of the other principles of free speech as understood in American jurisprudence. At a preliminary hearing, that argument was accepted - not without some controversy - and the case proceeded to trial.

The plaintiffs’ burden remained formidable nevertheless. They had to establish that the band had deliberately placed a message on the record, which was inaudible (but still identifiable) and thus “subliminal”, and that the message had a direct, causative link to the suicide attempts.

The band members, who can be forgiven for not taking the writ entirely seriously initially, attended trial in a solemn manner, with their usual S&M-looking garb replaced by sober suits, offset slightly by the expansive hairstyles common to all metal bands of the time. They denied that any subliminal messages had been placed on the album. It was pointed out that any number of apparent phrases could be “heard” by playing the record – or any other record – backwards, and that most such “phrases” were as innocent as they were nonsensical.

The particular message alleged to be present by the plaintiffs was “do it”, which immediately raised the unanswered question “do what?” The band remarked that if they had been going to insert any such message, it would have been along the lines of “buy seven copies of this album” and not a commercially-detrimental injunction for fans to kill themselves.

The judge ultimately held that the claim failed due to lack of causation: the tragic actions of Vance and Belknap could compellingly be ascribed to other factors.

Justice was therefore done, although the judge’s prior holdings remain disquieting. They include the statement “the ‘Do It’s’ on the record were subliminal because they were only discernible after their location had been identified and after the sounds were isolated and amplified”. But, as one of the defence witnesses subsequently wrote (Dr T. Moore, “Scientific Consensus and Expert Testimony: Lessons from the Judas Priest Trial”, The Skeptical Inquirer, Vol 20.6, Nov/Dec 1996), something not consciously discernible is not necessarily unconsciously discernible either.

Dr Moore also pointed out that there is “no evidence whatsoever that subliminal directives can compel compliance”.

By allowing the case to proceed to trial, rather than dismissing it summarily, the judge allowed the junk science on which the plaintiffs’ assertions were based to gain the veneer of plausibility, or at the least the oxygen of publicity. The proceedings also left the band incurring significant and unrecoverable legal costs.

The plaintiffs’ lawyers were just as much to blame for advising their clients to bring an absurd case. They may as well have fashioned an ecclesiastical action on an image of Christ seen on a piece of chapati bread.

Predictably the publicity had some effect. Fellow British metal legend Ozzy Osborne also found himself sued in America over his record Suicide Solution, but the case failed because there were no detectable subliminal messages and the overt exhortations in the lyrics qualified for First Amendment protection.

Attention was granted to the INXS song Suicide Blonde, but the tune was exculpated because it referred to hair colour - somewhat ironic in view of Michael Hutchence’s subsequent death. Presumably however radio stations stopped playing the Billie Holiday classic Gloomy Sunday or the theme to M*A*S*H (Suicide is Painless) around the same time.

With original recordings now almost exclusively in the digital format one hopes we might now be spared “analysis” of supposedly hidden messages in tape distortion, feedback or “white noise”. But I suppose that would be to underestimate the human imagination ...

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

2011-07-20T09:10:00.001+01:00

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.

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

2011-07-15T07:14:00.001+01:00

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.

Comment

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.

Free Speech: American and British perspectives

2011-07-06T19:03:00.002+01:00

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.

Rights in schools: getting out of pupils’ hair

2011-06-22T17:35:00.011+01:00

For Halsbury's Law Exchange, published here

When the magazine Punch was still extant, and still funny (not the same thing in its case), it used to have a column for amusing newspaper headlines or bylines, of the sort that were later found in endless round-robin emails. My personal favourite was an apparently genuine advertisement offering “a free set of bass guitar strings with every trumpet purchased”.

Another I remember told of a schoolboy who had been “suspended by his head because of his long hair”. Nowadays the unfortunate schoolboy would have a legal remedy against the school, whichever way one interprets the headline (double pun acknowledged). If he was caught with his hair somewhere, doubtless someone would fashion a personal injury action against the school for negligently failing to remove the hazard. If on the other hand he was excluded from the school for a time because of the length of his hair, then he might have an action along the lines of the recent decision in SG v St Gregory’s Catholic Science College [2011] All ER (D) 113 (Jun).

The case concerned a pupil, SG, who wore his hair in a style known as "cornrows". Although not explicitly contrary to the school's written policy, it had been made clear at the start of the year (at a meeting at which SG and his parents were not present) that the style would be banned.

SG brought judicial review proceedings to challenge the ban, contending, inter alia, that the policy constituted indirect discrimination on the ground of his race, pursuant to s 19 of the Race Relations Act 1976 and s 85 of the Equality Act 2010.

The question thrown up by the case essentially concerns the scope of the freedom of a school to set a uniform policy. One might have thought the limits should be very broad, but not so broad as to include discriminatory aspects: a child should not be forced to act contrary to his or her own culture. General rules may well inadvertently have that effect: a ruling requiring no hats might clash with some religions, for a start.

Even if the UK were to adopt the French concept of laïcité and ban all religious symbols in schools, the issue would still arise in cases such as SG’s, where the ground of objection was one of race or culture rather than religion.

It certainly was not the intent of the policy in SG’s case to discriminate against anyone; hence the action was for indirect discrimination. This required SG to show that the school had a policy which applied equally to all but which placed one group at a particular disadvantage, and that the policy could not be shown to be a proportionate means of achieving a legitimate aim.

Collins J held that:

“It is only if there is a genuine cultural and family practice of not cutting males’ hair and wearing cornrows that an exception could be made. It would be made clear that the grounds for such an exception would have to be established and that conformity must occur unless to conform was regarded as impossible. There is no reason why hairstyles which might be indicative of gang culture should be permitted.”

As a starting point, no-one would suggest that a school should discriminate, knowingly or otherwise, against a particular culture. But there remains room for disquiet. It is almost inevitable that some symbols of importance to some pupils will be excluded by any uniform policy. Collins J said that only "genuine" cultural symbols or practices could form a ground of challenge. But how is the school to judge what is genuine? What of kilts and tartans, both of which can be said to be an important symbol of Scottish culture now, but neither of which have anything like the ancestry television and films would have us believe?

It seems to me that requiring schools to adjudicate on the genuineness of a particular cultural symbol is akin to the decision in Nicholson v Grainger to elevate non-religious belief systems to the status of religions for employment purposes. For an employer to try and determine the status of a belief system is an unwieldy and unnecessary exercise, it will be the same for schools. Adam Wagner writes that

“schools will be frantically reexamining their hair and clothing policies for potential discrimination and students dreaming of their day winning against their teachers in court”

Which may or may not be the best use of the ever-stretched school resources.

Many pupils (and adults for that matter) change their cultural, religious and other identity as they go along. Is each new identity to be assessed according to its age, how deeply held it is by the particular pupil and some other criterion or criteria?

Moreover, some practices - cultural or whatever - are contrary to principles of liberty, equality and other values, and will end up being banned, causing accusations of inconsistency concerning what is permitted. This was in fact something the school had in mind in SG’s case since it associated cornrows with the gang culture it was trying hard to eradicate (comments below other articles on the case indicate that that was a controversial association to say the least). Collins J dismissed the idea of a would-be skinhead using the decision as a precedent, but not all traditions of shaving heads belong to far-right lunatics, so we might expect problems of consistency at least.

Perhaps the simplest solution would be for schools all to loosen their policies to the point where almost nothing is prohibited – but immediately some pupils will start wearing and displaying things others find offensive, leading to more governors’ meetings and litigation anyway.

Perhaps instead, then, schools should be given freedom to determine policies and adjudicate exceptions themselves, within a very broad framework indeed, and anyone who disagrees with a particular policy can either (i) choose a new school, or (ii) perhaps consider that it is not always a matter for regret that pupils have restrictions that adults do not.

Religion and the law once more: the circumcision debate

2011-06-17T15:57:00.004+01:00

Published in Halsbury's Law Exchange here.

In San Francisco an attempt is presently being made to ban the practice of male circumcision. The movement has sparked a debate in this country, with Neil Howard and Rebecca Steinfeld arguing that it should be banned and Adam Wagner countering that a ban would amount to a disproportionate interference with freedom of religion.

In my view the key lies in the correct analysis of the issue.

Howard and Steinfeld make the point that female genital mutilation is banned and therefore, as an act of equality, male circumcision should be as well. The point is not so straightforward, because male and female genitalia, to state the extremely obvious, are not the same thing. Some more analysis is required.

Wagner approaches the question on the basis of the religious rights of the parents, which in legal terms are governed by art 9 of the European Convention on Human Rights. As set out in R (on the application of Bashir) v Independent Adjudicator and others [2011] NLJ 812, the application of art 9 involves three questions:

(i) whether the claimant’s rights under art 9 are engaged;

(ii) if so, whether there has been an interference with those rights;

(iii) if so, whether the interference is one that is both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There is little doubt that a ban on circumcision would produce an affirmative answer to the first two questions. Assuming that the ban derived from an Act of Parliament it would obviously be prescribed by law. The question would then be whether it was necessary in the interest of public health or morals, and proportionate to that end.

Wagner argues that the answer is no: he does not accept that the medical evidence conclusively establishes that a ban is justified on health grounds. That being so, there would also be scope for disagreement as to whether the ban was proportionate, because circumcision is a firmly established tradition in several religions and a large number of adherents to those religions could be expected to react strongly to a ban.

Thus, on art 9 grounds, it is certainly arguable that parents should have the right to carry out the procedure.

In response I would argue that the art 9 analysis is inappropriate. This is because the religious rights of the parents are one thing, but of overriding importance are the rights of the child. The UN Convention on the Rights of the Child makes clear that the best interests of the children should be the overriding principle whenever children’s lives intersect with the law, and in my view that principle is indisputable.

The blunt fact is that circumcision not done on compelling medical grounds constitutes an assault. The onus is therefore on those wishing to carry out the procedure to show that it is nevertheless somehow in the child’s interest.

It is not possible to justify assaulting a child on the ground that the parents’ religion requires it – any more than the state should permit parents to withdraw female children from school on the ground that their culture or religion objects to girls becoming educated.

Imagine a strange cult that required children to be branded a la cattle farming with a red hot poker, or some other bizarre practice. No art 9 grounds would permit this. That circumcision might be seen as less extreme (or not) does not change the principle. Here is where the gender equality argument becomes relevant: the only difference between male and female circumcision is that the latter is banned because the harm is greater, but that is not a sufficient distinction – there is no “acceptable level of harm”.

One red herring needs to be dealt with. Smacking a child (controversial enough in itself) is an assault. But the argument in favour of doing so is that it is in the child’s interest to learn discipline. No comparable argument for circumcision exists other than medical grounds. It is not enough to say that it does not harm the child, it has to have a tangible positive benefit. If it does, then circumcision is indeed justifiable and I would abandon any objection.

The fact that male circumcision is a deeply held tradition that has lasted for thousands of years is relevant but not compelling. Slavery, sexism, blood sports and any number of other now banned and thoroughly discredited practices, cultures and beliefs could have been (and often were) defended on the same grounds.

Ultimately, practicing religion should be subject to the same standards as non-religious activities. There would be no acceptable justification for assaulting a child on secular grounds; religious practices should be held to the same standard.

One final point. See here for a superb judicial response to sexism in religion in the present context.

The need for diversity on the Supreme Court

2011-06-13T15:43:00.008+01:00

Shortened version published on Halsbury's Law Exchange here

Introduction

The question of appointments to the Supreme Court continues to generate controversy across the legal blogsophere, and now the House of Lords Constitutional Committee has decided to launch an inquiry into judicial appointments generally.

In a previous post, I have argued that a final vetting stage of candidates for the Supreme Court should be carried out by a cross-party Parliamentary committee, as a way of a more open process with some democratic imprimatur and an affirmation of the status of Parliament as supreme in our constitutional arrangements. It should, however, be no more than a final vetting.

I have also argued that the court should continue as a general appeal court, rather than refashioning itself as some sort of constitutional court or local version of Strasbourg. I would add that I do not see how the court has the power to do so. There is nothing in the Court’s founding statute (the Constitutional Reform Act 2005) limiting the right of appeal and any suggestion that the court should only hear certain cases would amount to an unlawful fetter on its discretion.

Of course, the court could do so de facto simply by refusing permission to appeal for anything other than public law cases, but to exclude valid appeals simply because of their subject matter would deprive litigants of access to justice. The Court of Appeal deservedly has an outstanding international reputation, but the sheer volume of cases it hears means that inevitably there will be some cases where further review by the Supreme Court will be justified.

The issue on which I have not yet commented concerns the controversial question of diversity on the bench.

Three caveats

It is often said that the judiciary is unrepresentative of society, and its legitimacy suffers as a result, hence the composition should be changed whatever the appointments process.

I would agree with that proposition, with three caveats. The first is that, despite the large number of public law cases heard nowadays, it is not the role of the judiciary to "represent" the community, or a particular constituency thereof. The role of the court is to resolve disputes before it according to the law.

Of course the judges are involved in making law, but they do so subject to Parliament, which remains supreme in our constitutional arrangements.

They are also involved in evaluating questions of policy, but in doing so they are not in the position of a political party attempting to implement a manifesto. Rather, their role is limited to assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of domestic case law and that of Strasbourg.

Secondly, however representative the bench becomes, it is inevitable that each individual judge will spend most of his or her time hearing cases the facts of which are largely outwith his or her personal experience. Even if it were otherwise, it would lead to accusations of bias if judges were always assigned to particular cases because they happened to share the background of one of the parties. There would be no point in multiple judges hearing appeals if they were always expected to defer to the one who was the expert on the particular subject matter or who was thought to have particular awareness of the litigants’ social group however defined.

Thirdly, resolving cases always involves a great deal of technical legal knowledge. This necessarily narrows the field for judicial selection to suitably qualified and experienced lawyers.

In other words, judges are not equivalent to politicians and therefore should not be appointed on the same basis.

The case for diversity

Those caveats aside, the justification for a more representative bench may be stated fairly simply. British society is far more diverse culturally than historically, and old notions about deference and class distinctions have long been discredited. If the judiciary remains as homogenous as it has been in the past - that is, dominated by elderly white middle-and-upper class, public school and Oxbridge males – it will have the appearance of a self-serving elite, however radical the actual decisions judges make. It will suffer the objection that the members are "out of touch"; and wider issues about social mobility will be (as indeed they presently are) engaged.

An homogenous bench will also suggest bias or discrimination in the selection process. Even if the judges are appointed purely on merit – defined as the best legal ability – if the pool of experienced lawyers from which they are drawn is itself unrepresentative, then the question arises of barriers to entry to (and promotion within) the profession, and prior to that university selection and the education system generally. (Needless to say those are much wider questions than simply the appointment process to the Supreme Court or the bench as a whole, and I won’t attempt any exposition here.)

Statistically it would be implausible to say the least for all the best lawyers to be from one small demographic, so it may be seen as advancing – not retarding – the search for the best judges to look to a more diverse pool.

Moreover, on appellate courts the virtue of having more than one judge may be partially vitiated if all are drawn from identical backgrounds. Alexander Horne’s important recent study expands upon this point (at Pt 5.2). In corporate newspeak this is known as the danger of "groupthink". (See Rackley, E. What a difference difference makes: gendered harms and judicial diversity, International Journal of the Legal Profession, Volume 15, Issue 1 & 2 March 2008, and generally Horne Pts 5.3 and 5.4).

This extends beyond the demographics of the bench, to include their professional experience. Lord Pannick QC said of a well-known public law case (YL v Birmingham City Council [2007] UKHL 2):

With three Chancery judges (Lord Scott, Lord Mance and Lord Neuberger) outvoting Lord Bingham and Baroness Hale, the House of Lords decided on the meaning and application of s.6(3)(b) of the Human Rights 1998 ([2009] Judical Review 109)

Mr Horne responds: “This somewhat sneering reference to the former Chancery judges reflected the view of many in the human rights community that they should have deferred to the views of their public law orientated brethren.”

(I would interpolate that Lord Pannick, with the greatest respect, hasn't done his homework on that particular case: Lord Mance was a judge of the Commercial Court, as was Lord Bingham.) True one might expect a judge whose practice concerned exclusively commercial cases might take a different view of public law cases than, say, a former tax lawyer, or human rights lawyer, or indeed family lawyer, but then again two of the leading human rights judges of recent years have been Lords Hoffmann and Bingham, formerly of the Chancery Division and Commercial Court respectively. This shows again that judges do not necessarily conform to expectations or stereotypes once appointed, and it reinforces the futility of trying to elicit judges’ political views before appointing them.

In other words, one should have a diverse bench, and expect a diversity of views accordingly, but predicting how that diversity will play out in practice is not really possible.

Conclusion

The need for a more representative judiciary is manifest. I would caution, however, that it still needs to be confined to meritorious candidates, meaning those with the appropriate skills (including black letter law, which is a technical expertise) and experience. “Political” appointees would be a disaster for the reputation of the judiciary: it would set back the cause of equality no end if someone was appointed and thought simply to be a beneficiary of tokenism. Commercial confidence in the judiciary would drop and overseas litigants and businesspeople would look elsewhere.

It follows that the lack of diversity cannot be remedied overnight. In the case of the Supreme Court, however, as I have argued elsewhere, a wider pool might be appropriate given that the judges do not need expertise in fact finding (and hence cross-examination) or procedural law, both of which are central parts of the lower courts' role. A precedent has already been set with Jonathan Sumption QC who, whilst not of any recognisable minority himself, was appointed straight from the bar (albeit not without some controversy, it has to be said). Senior lawyers from academia, business, the civil service and elsewhere might also be considered.

Injunctions: almost time for a dry martini

2011-06-10T15:28:00.001+01:00

Published in Halsbury's Law Exchange here

Fred Goodwin has been back in court (Goodwin v NGN Ltd [2011] All ER (D) 45 (Jun)). The injunction concerning a relationship he had with a former colleague has been varied to permit disclosure of the job description of the lady in question, but not disclosure of her name.

Mr Justice Tugenhadt had this to say about the publicity which the case has received in the past three months:

"On many occasions since 1 March people have commented publicly on the case, criticising the injunction in the pages of newspapers and elsewhere. Much of this reporting contained many factual errors about the case, as I have noted above. Judges read newspapers, but judges cannot vary court orders on the basis of what the public are told by the media. If persons affected by a court order want it to be varied, they must make an application to the court. As appears from the events of 19 May, they can do this quickly and informally, if it is urgent.

English law develops in two ways. First, it is made by Parliament. The Prevention from Harassment Act 1998 and the Human Rights Act 1997 are two privacy statutes referred to in this judgment. Second it is developed by case law, as judges apply the statute to particular cases. At the second stage it is essential that the parties to litigation put their evidence and submissions before the court. It is by weighing up arguments and counter arguments that judges are best able to interpret the law. The circumstances of injunctions applied for out of hours on the telephone are not favourable to a considered development of the law. That is one reason why judges order cases to come back before the court for full consideration on the evidence. That happened on 4 March. But there was no argument then because NGN chose not to argue its case. And other media organisation notified of the injunction chose not to argue the case in court. To the extent that media defendants choose not to submit evidence and argument to the courts, judges will find it difficult to develop the law of privacy to meet the needs of society."

I think that constitutes at least a short stint on the legal naughty step for a few of the media organisations involved.

No doubt the case will be read with interest by all who attended the excellent privacy conference held by Weber Shandwick at Gray’s Inn on 8 June. During the discussion the point was again raised that privacy law may well end up being a castle built on sand, given that the internet may simply render injunctions unenforceable.

I have made this point before and it seems from comments on the UKHR blog that some people see it as a triumphant act of civil disobedience. While I agree that the privacy laws take too little account of freedom of expression – indeed significantly too little – I am not so sure that there are not other options available to those who wish to have them changed which do not involve breaking the law. Also, if it becomes the norm for injunctions to be obliterated by the determined twitterati then it will not be long before real harm is done to a deserving claimant rather than an indulgent miscreant footballer or z-list celebrity; if so the civil disobeyers might remember the old adage about being careful what you wish for.

Having said that, of course, it only takes a few to breach every injunction to render them all futile. If so there is no point in judges, politicians or anyone else arguing about the rule of law; they will have to throw the towel in, rather as American legislators felt compelled to do when ending prohibition.

Legend has it that FDR just happened to have the ingredients for a martini to hand when he signed the 21st amendment, having enjoyed a beer shortly after the Cullen-Harrison Act came into force. I wonder what equivalent might be available to a judge who feels compelled in the future to run up the white flag on judicially-developed privacy laws.

"We don't do God": religion in the public domain

2011-06-03T16:58:00.000+01:00

Published in Halsbury's Law Exchange here

In Tom Wolfe's classic novel The Bonfire of the Vanities there is a very funny passage that will chime with anyone who has seen one of the more colourful litigants in person in action. In Manhattan, a most unfortunate character named Herbert Cantrell is on trial for manslaughter. Herbert has renamed himself "Herbert 92X" pursuant to his religious beliefs, although the sincerity of those beliefs is open to question. He is represented but his lawyer is so hapless, and Herbert so vociferous, that Herbert spends most of the time addressing the court in person. He insists on beginning each day in court with a reading from the Koran, and the judge, an irascible sort named Mike Kovitsky, allows this to happen to let the volatile Herbert let off steam and thus save time in the long run.

One day Herbert feels that he has been short-changed by the time allotted to his reading, and demands the right to continue. Kovitsky snarls that “We happen to live in a republic, and in this republic there is a separation of church and state”. In response Herbert triumphantly tells the judge to look behind himself, where emblazoned on the wall of the court are the words "In God We Trust". The court dissolves into fits of ill-restrained giggles; with the exception of Kovitsky, who explodes into rage, although he finds time to compliment Herbert for being so observant.

Such occasional religious references appear in various places in American public life in reality too, and according to this report from the UK Supreme Court blog the US Supreme Court has just refused to consider a challenge to the use of the words “So help me God” in the Presidential inauguration ceremony.

The case was brought by one Michael Newdow, a private individual. A few years previously Newdow had brought proceedings seeking to exclude the words “under God” during the Pledge of Allegiance in his daughter’s classroom each morning. That case ultimately failed on the ground that Newdow lacked standing to raise the issue on behalf of his daughter.

His later action initially sought an injunction to prevent the Chief Justice, John Roberts, from reciting the optional religious wording during President Obama’s ceremony in January 2009. He alleged that the wording violated the Constitution and infringed his freedom of religion (referring to the First Amendment’s establishment clause). The relief sought was later amended to include future inaugurations as well.

The case failed on the ground that the plaintiffs lacked appropriate legal standing to bring the case. Further, according to this website,

“Acting Solicitor General Neal Katyal wrote in his brief: “Because the content of the inaugural ceremony is entirely dependent on the president or president-elect’s wishes, only a judicial order running against the president or president-elect would result in the relief that [the atheists] seek. But [they] have not filed suit against the president or president-elect.”

Mr. Katyal added that the appeals court had emphasized that “a court would not have the authority to enter an injunction directly against the president in the exercise of his executive functions or against the president-elect (a private citizen) in the exercise of his personal religious beliefs.””

Leaving aside the technical legal and procedural points about standing, the case throws up an interesting question: is the President, or any other public official, merely expressing a personal view – protected by the right to freedom of speech and freedom of religion – or bringing religion into the public sphere where it should not be permitted because of the separation of church and state?

Other questions immediately present themselves too: what if the official has campaigned during the election partly on his or her religious faith? Is there a difference if she is appointed rather than elected, so that no democratic imprimatur can be claimed for her beliefs? Does it matter if the role is a narrow, technical one in respect of which religious beliefs can be seen to be irrelevant, as opposed to one with a broad scope such as that of president?

It seems to me that Mr Katyal’s reasoning is sound: the candidate should be entitled to make religious references in his or her speech, but only as an expression of personal faith.

Any public role should be required by law to be conducted without fear or favour towards all citizens, including all religious groups, which should effectively preclude any favouritism or other improper action, religiously motivated or otherwise.

That being so, expressions of private belief in public ceremonies should be unobjectionable. Indeed, it would be more honest for a public figure to be open about his or her beliefs if there is any suspicion that they have a role in his or her decision-making, as was inferred in relation to Tony Blair, for example.

On the other hand, it also follows that there should not be a compulsory religious element in public events, for that would be contrary to a separation of church and state and the requirement for the state to be neutral as between competing religions (and non-religious belief systems). In America this is easy to enforce legally because of the establishment clause. In Britain, however, it runs directly counter to the status of the Church of England. One suspects that if Mr Clegg’s constitutional reform effort gains the sort of momentum that it has so far lacked, that status may soon be within his sights.

Injunction-breakers v privacy-brokers: the fight for free speech

2011-05-31T15:31:00.002+01:00

Published in Halsbury's Law Exchange here.

When writing about superinjunctions in April, I offered the observation (for which I claim no originality or great insight) that the internet might well render the law of privacy unenforceable. Needless to say, something close to that situation has since come to pass, and there has been much discussion on the legal blogosphere on the subject.

I must admit to some mixed feelings about the injunction saga. Deliberately flouting court orders, whether it be by private citizens using the internet or by attention-seeking MPs invoking Parliamentary privilege, is seriously damaging to the rule of law. Spreading rumours about injunctions without even knowing if they are true or not (or perhaps deliberately in the knowledge that they are false) is also reprehensible behaviour by any measure.

In a country where political speech at least remains free, the internet-wielding private citizens ought to be campaigning for a change in the law if they happen to disagree with it, not deliberately undermining it. MPs as lawmakers have even less excuse.

One argument doing the rounds of the popular press has it that privacy laws are exclusively judge-made, and are somehow less defensible as a result.

In response I would say, first, that present privacy laws derive from art 8 of the European Convention on Human Rights which, needless to say, was brought into UK law by an Act of Parliament, so all the law-making has been done against that background. Moreover, Strasbourg was already some way down the line of current art 8 jurisprudence, so it is fair to say we were warned. But whether the present law of privacy is judge-made or not is beside the point: the law is still the law, and if it is deliberately flouted via the internet or Parliamentary privilege the rule of law is undermined.

Secondly, even if Parliament were to pass legislation on the subject, it would have the same enforcement problems as the courts for the same reasons – it would be largely unenforceable against overseas bloggers and tweeters, and MPs relying on art 9 of the 1689 Bill of Rights (although presumably the latter might be a little more restrained in their use of Parliamentary privilege if they thought that privacy laws carried Parliament’s approbation). Moreover, in passing any legislation Parliament would be constrained to act within the margin of appreciation afforded by Strasbourg.

Leaving aside the practical difficulties, it does seem to me that in balancing privacy with freedom of expression too much weight has been given to the former. I do think it would be wrong to allow publication of photographs or video footage of someone’s private activities, and for that reason the courts reached the right decision in the Mosley case. But I remain unconvinced that that degree of privacy should extend to suppress a textual report of the fact of someone committing adultery.

Injunctions are serious matters: any breach may result in a sentence of imprisonment. The usual ground advanced in their support is that children of the injunction-seeker should be protected. Yet murderers and rapists do not qualify for name suppression even if they have children, so the argument that adulterers should is on flimsy grounds. The criminal law is the state’s ultimate weapon against its own citizens and it should be used sparingly. Tell-tales and gossip-mongers are generally not admirable people but that should not render them criminals, which is what injunction-breakers will become. Moreover, the courts are a scarce, expensive and overworked public resource and there are many more deserving litigants waiting to have their cases heard than embarrassed footballers and other b-list celebrities.

I suspect self regulation, for the mainstream media and for news and legal bloggers who wish to be taken seriously, will be more effective. The courts should be used to award damages against those who impinge privacy in cases such as Mosley’s. The distinction between breaches which do warrant the law’s intervention (such as Mosley’s) and those which do not (straightforward kiss and tell tittle-tattle) would have to be worked out on a case-by-case basis – even if Parliament did legislate on the subject, for then there would be litigation on the interpretation of that legislation. A starting point might be to consider the US law on the subject, whereby those deemed to be public figures rarely stand a chance of suppressing the freedom of the press.

Those who do not like what has been said about them should either sue for defamation – if the statement wasn’t true – or maintain what used to be called a dignified silence. Or, dare one even suggest it, not give the tabloids ammunition in the first place …

Coda: for further reading this morning’s roundup on the UKHR Blog is a good place to start.

The need for journalists to attend court

2011-05-23T19:07:00.003+01:00

Shortened version published in Halsbury's Law Exchange here.

Adam Wagner of the UK Human Rights Blog has written about the controversy surrounding Christopher Booker’s reporting of a family law case. Booker’s original article gave rise to much comment for and against, including a response by the court itself. Booker himself then dispatched some thunderbolts back, and Wagner has responded in turn albeit in a somewhat more measured tone.

I do not wish to pass any comment on the actual case which Booker’s original article concerned, since I have not read about it in any detail. He may be wholly right, wholly wrong or something in between. Instead, I wish to comment on the general point of interest in Wagner’s original article, namely whether it is necessary in order to report proceedings for a reporter actually to be present in court during the hearing before commenting on a particular case.

The answer, inevitably, is that “it depends”. If a journalist is simply reporting the ruling in the case, then a properly written judgment should be able to be understood (by an appropriately qualified person) without reference to any other documents, let alone the hearing itself.

If on the other hand a reporter wishes to comment on any findings of fact, then they would be in a much stronger position if they attended the hearing and observed the witnesses – for precisely the same reasons that the Court of Appeal is unwilling to overturn first instance findings of fact.

If a reporter is unable to attend, or only becomes aware of the story after the event, then, as Wagner points out, it is usually possible to obtain transcripts and other records. Though an imperfect record (a witness”s demeanour can say as much as their words) such documents would certainly put the reporter in a stronger position than merely conducting a rehearing of their own with the disappointed party, which is the nub of much of the criticism that has been levelled at Booker.

It cannot therefore be seriously disputed that reporters will gain a much better picture of findings of fact by attending hearings. Again, as Wagner states, there are nothing like the impediments to doing so that Booker seems to imagine – the rule of open justice is one of the most fundamental in the common law. In 1913 the House of Lords stated that: “In public trial is to be found on the whole the best security for the pure, impartial, and efficient administration of justice, and the best means of winning for it public confidence and respect” (Scott v Scott [1911-13] All ER Rep 1). Nowadays that rule is bolstered by the fair trial requirements of art 6 of the European Convention on Human Rights, though given how well entrenched it already was in the common law, I doubt there has been any practical difference.

Of course, Booker would respond that the family courts are not sufficiently open to the public. But they are much more open than before, and the press can usually challenge a ruling about a case or particular evidence being heard in private.

Wagner observes that journalists attending court will have to sit through multiple delays and many days of boring, irrelevant material. This is true, although at least nowadays with modern communication devices they have less of an excuse not to be doing something worthwhile while they sit there. Nevertheless, Wagner cautions that they may be tempted to sex up stories to justify the time committed.

Here I am reminded of Robert Winder's superb travelogue of a cricket correspondent, Hell For Leather: a modern cricket journey, where he describes his experiences on the subcontinent covering the 1996 World Cup. The goal of all the hacks was to secure a headline. The goal of the players and management was to prevent them from doing so. Therefore at every press conference they would stoically meet every question with an answer as bland as an in-flight menu. This presented no problem to the hacks, however, who were well practiced in the art of turning a side remark about a player recovering from a minor injury into a screaming headline about a player getting slammed by the coach for being ill-prepared.

The problem facing the hacks, however, was that if they missed a “story” being run by one of their rivals, they would receive an angry call from their editor demanding some equivalent copy, and given the time difference in the subcontinent the call would usually come in the middle of the night. The more experienced hacks wistfully recalled tours to the West Indies, where the time difference and the now ancient state of the technology meant that nothing could be altered beyond 6pm local time, leaving the hacks to while away the hours by the hotel pool free from any inconvenient work-related interruptions.

Ever ingenious, the solution of the hacks on Winder's tour was to band together and agree amongst themselves what the story of the day was to be, and then simply compose their own variations on the theme. It meant fewer scoops but much better sleep.

Perhaps court reporters might be tempted into the same thing, though in my experience court reporters are a diligent group who of course make mistakes on occasion (like everyone else) but by and large aim for accuracy even if they choose to emphasise an aspect of the case that lawyers would consider trivial or irrelevant. But the short answer to improper journalism is better editorial standards, not less journalism, and one should not discourage journalists from covering hearings – or anything else – because of a risk that they might get bored and invent something to justify their time.

It is, therefore, a cause for regret that fewer journalists may be found in court nowadays, all the more so if it is simply because they don’t feel it worth the effort. The rule of open justice exists for a reason – justice has to be seen to be done. The presence in court of journalists is a tangible contribution in this respect. Further, as I have written before: “The mere presence of a journalist in court ensures a form of watchdog for anything untoward that might happen during the proceedings. Judges who fall asleep, counsel who lose their temper, jurors who behave improperly or any other examples of human failings will … be brought to book in the court of public opinion accordingly.”

The future of legal blogging

2011-05-20T16:50:00.002+01:00

Published on Halsbury's Law Exchange here.

Last night 1 Crown Office Row hosted an event at the Law Society on the future of legal blogging. I must at the outset thank the organisers both for the high standard of speakers and for the hospitality, although the excellence of the latter may, I fear, have adversely affected my memory of the former.

Blogging is an activity which could be tailor-made for lawyers, who almost by definition are people who enjoy both the English language and the activity of getting on soapboxes.. In fact, the only real surprise about legal blogging is that there isn’t more of it, but then I suppose lawyers also enjoy making money, and blogs tend not to do that.

One of the first questions put to the panel was whether legal blogging is an example of the old philosophical conundrum of a tree falling in the forest where there is no-one to hear it: is it making any sound, or merely a vibration?

To my mind, the answer is that while there are no doubt many individual blogs with no readership beyond the individual author, legal blogging as a whole is indeed making some tangible noise. An example was given last night of the Simon Singh libel case. Dr Singh had close support from some bloggers, and the case as a whole received some attendant publicity. I would observe that the blogs would have had no effect on the actual outcome of the litigation, although attention drawn to the preposterous nature of the claimant’s action – which constituted a blight on free speech, a blow to consumer information and a retardant to scientific advancement – has to be a good thing.

The more general point made was that blogs provide legal information and dissemination in a format that is free, easily found and, in the case of the better-written, more understandable than traditional sources of legal information. They also serve as a forum for public debate.

One intriguing aspect of the blogosphere is that it is something close to a perfect free market in ideas – there are few barriers to entry for suppliers, almost no cost to consumers and, whilst there is some regulation of UK-based bloggers, the nature of the internet is such that almost any regulation might be rendered ineffective, as I wrote about in the context of superinjunctions.

The last of those points poses some serious issues for bloggers. No doubt there was a certain amount of schadenfreude when Fred Goodwin’s injunction was effectively defeated by a combination of the very old in the form of the protection of free speech in Parliament guaranteed by Art 9 of the 1689 Bill of Rights, and the very new in the form of the effective invulnerability of overseas bloggers (some of whom likened Goodwin’s attempts to preserve his public image to Mr Guggenheim putting on his dinner jacket to go down with the ship, though with the opposite of Guggenheim’s gentlemanly and heroic connotations). Yet readers will need no reminding of the severe injustice that scurrilous information might cause – mistrials in serious criminal cases, or career-ending defamation, for a start – which even the most ardent free speech advocates would regret. It is fair to say, therefore, that the future of injunctions contempt of court, open justice and confidential information in the Twitter age has yet to be decided (see here for Lord Neuberger’s report on super-injunctions, published this morning).

An interesting discussion also took place on what will happen to traditional journalism in the face of legions of blogs. It was pointed out that online journalists enjoy freedom from the rigid word counts and publishing delays which print publications necessarily involve. They also have the ability to correct errors in the original copy and can insert necessary links (links being stressed last night as an essential tool for substantiating arguments and providing further reading – clear benefits over print journalism).

The consensus seemed to be that, whilst the benefits of near-instantaneous tweets of news and comment are undoubted, there will always be a place for more considered analysis by professional journalists and commentators a few days after the event. Inevitably, however, the presence of high quality free comment on legal affairs on the blogosphere will affect the value of legal journalism in monetary terms.

The hope was expressed that a meritocratic system would separate blogging wheat from chaff. Inevitably the most popular bloggers – as in most walks of life – will not necessarily be the best in terms of quality; but I would imagine that good blogs would become known within short order.

I would agree that the marketplace of ideas will be an effective regulator of legal blogs. Existing professional duties will be an effective restraint on blogs written by practising lawyers. For most of the mainstream media, the Press Complaints Commission jurisdiction now extends to blogs. Perhaps other bloggers will in time form voluntary codes of conduct of a similar nature, as a way of adding some authority or otherwise assuring readers.

Legal blogging, whatever its flaws, ensures more debate about the rules that govern us, and keeps better scrutiny on those who make and enforce them. Having more of those benefits seems a pretty good thing for the future.

What cases should the Supreme Court hear?

2011-05-17T08:29:00.009+01:00

Published in Halsbury's Law Exchange here

During research for my previous post on the Supreme Court, the question arose as to what sort of cases the court should hear. Some authors have been of the view that the court should fashion itself as a constitutional court, rather than continue as a general appeal court. Most notably, Baroness Hale is reported as saying that the court should eschew “big money shipping cases” which she argues are “important only to the parties and their insurers" (quoted here @ p26). A change in that direction would mirror the experience of the Canadian Supreme Court, which over the past 25 years has gravitated towards public law cases (see Hazell, Robert, The Continuing Dynamism of Constitutional Reform (January 2007), Parliamentary Affairs, Vol. 60, Issue 1, pp. 3-25, 2007 @ p17).

As noted in my previous post, there has been a substantial increase in constitutional and administrative litigation in the past half century, particularly since the coming into force of the Human Rights Act 1998. The more cynical attribute this trend to an overregulated society, an economic climate in which the state is seen as one of the few defendants worth suing (the yet more cynical dispute the validity of this assumption, with reference to the national debt), and the opportunities presented by the 1998 Act (“cynical” probably not being sufficient to describe some of the detractors thereof).

With the greatest respect to Baroness Hale, however, I would maintain that the Supreme Court should remain a general appeal court.

It should be uncontroversial to observe that Britain can only afford its vast state apparatus and world-leading standards of human rights because of the money generated by the City. That money is generated because international businessmen and women choose to do business here. They do so because of two primary reasons: first, the commercial expertise; and secondly, the regulatory regime.

Central to the second of those reasons is the dispute resolution mechanism, which in London is composed of the well-known arbitral tribunals as well as the court system. No one would choose to do business in a country which failed to adhere to the rule of law, or otherwise had an untrustworthy judicial system (unless I suppose one was tempted by the availability of minerals or other raw materials, which is not the case in London).

At the apex of the London dispute resolution and judicial tier sits the Supreme Court, which has a significant role as the ultimate guarantor of the correctness of the legal process, even if the guarantee is only rarely called upon.

In an important recent analysis Carnwarth LJ estimated that legal services amounted to £3b in foreign earnings in 2007, and pointed to the increasing number of international dispute resolution centres.* But a greater (if less easily quantified) sum would be earned on transactions which take place in London because of the regulatory framework as already mentioned.

It would also be incorrect to assume (nb - I am not imputing this assumption to Baroness Hale) that all "big money" commercial cases are irrelevant to the average consumer. The bank charges case (Office of Fair Trading v Abbey National plc and others [2010] 1 All ER 667) is a good example, and one can imagine test cases along similar lines in many other areas of consumer law. Or one thinks of Equitable Life Assurance Society v Hyman [2000] 3 All ER 961 - a classic Chancery Division dispute, but one upon which many thousands of ordinary people's savings turned. I do not see any compelling reason why the Supreme Court should not continue to hear such cases. In fact I would maintain the opposite: public confidence in the outcome of important cases will be much higher if they are resolved by thorough examination from the highest court in the land.

Accordingly, rather than seeking to confine itself to public law cases (either formally by a statutory restriction on its jurisdiction or informally by the exercise of its discretion to grant permission to appeal), the Supreme Court should continue as a general court of appeal. Or, to invoke one of the Court of Appeal's stock phrases, their lordships should dine a la carte rather than from a set menu. In considering whether to grant permission to appeal, the court should take a broad - that is to say, commercially aware - view of what constitutes public importance.

* As an aside, I would note that the importance of the Admiralty and Commercial Court renders it something of an embarrassment to the nation that for so many years it has had to be housed in such inadequate facilities as St Dunstan's House on Fetter Lane. A new building is under construction, which sensibly will also house the Technology and Construction Court (also lumped in St Dunstan's at present) and the Chancery Division (presently housed in the not much superior Thomas More Building within the Royal Courts of Justice on the Strand). This new building, Rolls House, will have much superior facilities, although it will still lack any character. During the Admiralty Court's ceremony marking the 200th anniversary of Trafalgar, it was noted that if the French had won then at least the anniversary event would be taking place in a decent venue. I wonder if it is too much to hope an edifice of suitable gravitas might be built in time for the 300th anniversary. At any rate, the absence of suitable premises for the Commercial Court was another reason why it was folly to be spending £30m on the Supreme Court building first, though obviously that argument along with the money has long been spent.

Supreme Court appointments again

2011-05-11T11:43:00.001+01:00

Published in Halsbury's Law Exchange here.

Last month I wrote about the controversy concerning the appointment of Jonathan Sumption QC to the Supreme Court. Since then Daniel Finkelstein in the Times has argued that the appointments process needs a fundamental alteration. He argues that since judges now inevitably involve themselves in political law making, they need greater democratic legitimacy. He advocates a version of the United States’ confirmation hearings, under which candidates nominated by the President undergo a searching examination in front of the Senate to elicit their political and personal opinions.

No one in modern times buys the old line about judges applying but never making law. Jonathan Swift did not even buy it in 1726. It is inevitable that judges are in the business of making and shaping the rules which govern us, as they have always and inevitably done.

Of course, they do not have an entirely free hand; the more outlandish claims of the "realist" school of jurisprudence are just as unrealistic as the old formalist myth about the law always being predetermined.

What has changed in recent times (that is, since the Second World War) is the extent to which the courts have been supervising the executive (administrative law) and, particularly since the Human Rights Act 1998 came into force, the extent to which they will entertain new causes of action against the state. That greater involvement in the business of government seems to underpin most calls for more democratic legitimacy for the bench.

In response I would argue that it is still not correct to say that the judges have assumed the role of unelected politicians. Even where a case raises questions of policy, the court is not in a position of a political party attempting to implement a manifesto, but rather assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of its own case law and that of Strasbourg.

Finkelstein gives the example of privacy laws. These, he observes, have largely been developed by the judges and therefore Sumption should be examined to elicit his views on them. It is not clear why this should be so. If Parliament does not like judicially developed privacy law then it should legislate to change it, not appoint judges who it hopes will have different views. The latter course would be impracticable in any event, since Parliament might find candidates with whom it agrees on privacy law but disagrees on other important issues. It would also be inefficient: since only one or two vacancies tend to arise at the same time, it could be years before the majority of the bench is reconstituted according to Parliament’s sympathies (and years more before a case is appealed on any particular issue to the Supreme Court). During that time a new government might be elected which thinks the opposite to its predecessor. Would the “democratic legitimacy” of the court then be undermined? Moreover, judges might change their views after being appointed, as indeed American Supreme Court justices have been known to do.

One other problem with the US model is that the expectation about political leanings occasionally detracts from the court’s appearance of objectivity. The most striking example in recent times was when the court had to decide issues concerning the outcome of the Presidential election in 2000, and it did so by a decision split precisely on party lines.

All that said, I would not argue that Parliament should have no involvement whatever in the appointments process. The appearance of legitimacy needs to be preserved. Or, to put it another way, justice needs to be seen to be done. The old system of secret soundings followed by the Lord Chancellor’s announcement was the antithesis of public justice, however well it actually worked in practice. The leg work for choosing suitable candidates should be that of the profession and the executive, but the last say between those candidates should be that of Parliament.

Rather than “Borking” Supreme Court candidates in the American style to elicit their views on contentious political and moral issues, the preferable system would be for a cross-party committee (CPC), chaired by the Lord Chancellor, to approve candidates nominated by the judicial appointments committee. The CPC should include the opposition spokesperson on justice, with perhaps the balance to be nominated on a proportionate basis by all represented parties. It might include non-lawyers, provided some legal experts were guaranteed to be present. It would be entitled to interview candidates and its discretion would not be fettered, though in practice one would not expect probing of personal philosophies in the manner of the US.

As the candidates would already have gone through a rigorous selection process one might expect that the CPC would rarely expose any as being unsuitable. The process would however be a worthwhile means of protecting the court’s independence and legitimacy. Parliament would be seen as having the final say over appointments, but the non-partisan composition of the committee would preclude any appointee being seen as a governmental lackey.

The process advocated above bears some similarity to that followed recently in Canada with respect to Marshall Rothstein. It is also broadly similar to that suggested by Alexander Horne in a paper of much greater length than this post. I would recommend the paper and its bibliography as the appropriate starting point for further reading on the subject.

Necessity as a defence to murder

2011-05-10T09:53:00.006+01:00

Published in Criminal Law and Justice Weekly, Vol. 175, 7 May 2011, p 270

Two media stories in 2010 of great human interest but with tragically different outcomes were those of the trapped miners in Chile and in New Zealand. No insensitivity to the familes of the New Zealand mining disaster victims is intended hereby, but the possibility of men trapped in such a manner raises one of the classic problems of criminal law and jurisprudence, namely how far the rules of civilised society can apply in wholly exceptional circumstances.

Suppose a group of people were trapped and could not be reached in time to prevent starvation without them resorting to cannibalism. That was the scenario envisaged by Lon Fuller in his classic essay “The Case of the Speluncean Explorers” (Harvard Law Review, Vol. 62, No. 4, p 616). Fuller's inspiration was, of course, one of the most infamous cases in English law, R v Dudley and Stephens [1881-85] All ER Rep 61, the case of the shipwrecked sailors killing and eating the luckless cabin boy.

In a recent review of the case (“Death on the High Seas” in Cases that Changed Our Lives, LexisNexis 2010), David Perry QC laments the modest standard of the legal reasoning in the case, which makes it surprising that it still remains authority for the principle that necessity is no defence to murder. It is therefore worth questioning whether the principle is justifiable.

Mr Perry QC recounts the following hypothetical problem, like the case itself a ubiquitous feature of law and moral philosophy tutorials. Suppose you are in charge of a set of railway points. A train is coming down the line which is going to hit five people. There is no time to stop the train or warn the people. The only option is to switch the points and send the train onto another line, where there is only one person. Should you intervene and cause the death of the one in order to save the five? Suppose the one is a woman and the five are all men. Does one invoke the “Birkenhead rule” and refuse to intervene? What if the one is a child and the five all adults?

Or suppose you are a surgeon with five patients, each of whom requires a different organ transplant. No organs will be available in time. But there is another patient who requires minor surgery of a different sort. Do you take each of the necessary organs out of the one patient and thereby save the five?

Straw polls I have conducted always favour flicking the switch of the railway points, but never intervening as a surgeon. And yet it is hard to see a moral distinction.

Both are distinct from the trapped miner/shipwrecked sailor dilemma, however, in that the trapped people all face death, rather than being in control of the lives of others. How do they decide who lives? Perhaps those with the lowest chance of survival should be sacrificed, but it would be perilous for the law to place a greater value on one life than another. About the fairest solution would seem be to draw lots.

It would be rare indeed for facts to be as cut and dried as in a tutorial (how could one ever prove the draw was conducted fairly?), although the law regularly has to deal with cases with no independent evidence, and the difficulty applies equally whether the defence of necessity is available or not.

Should, therefore, the law regarding necessity be abolished, thus enabling one innocent person to kill another innocent person, if the alternative is both of them dying?

With some diffidence, I suggest that it should not. The present law might be imperfect, but there are still four safeguards against injustice. The first is the Attorney-General’s discretion not to bring prosecutions even where there is strong prima facie evidence of an offence having been committed. That is a fundamental principle of the criminal law.

The second is the admittedly rough sort of protection in the form of the jury system. Someone attracting overwhelming public sympathy might expect that to be reflected in the jury’s decision.

The third is what was actually employed in Dudley and Stephens, namely the flexibility in sentencing – though that is greatly reduced when the charge is one of murder.

The fourth is the very rarely used Royal Prerogative of Mercy.

It is true that in the case of a person considered morally innocent all but the first method might leave a lingering sense of injustice, but on the other hand for obvious reasons extending the categories of acceptable murder – which is what a defence of necessity amounts to – has to be a step taken with the utmost reluctance. Ultimately, the injustice of a wrongful conviction can be at least partially redeemed, but the injustice of wrongfully permitting murder cannot.

The Mabo litigation saga

2011-05-07T13:54:00.003+01:00

Published in the New Law Journal vol 161, 29 April 2011, p 602

Prime Minister David Cameron recently attracted a few headlines when he suggested that “with so many of the problems of the world, we are responsible for their creation in the first place”. Needless to say, opinion was divided, both on the accuracy of his statement and the merits of him saying it whether true or not.

One thing Britain certainly did create, in 1788, was the modern state of Australia. At the time, it was considered that there were three ways in which title to land could be acquired: conquest, cession, and terra nullius - land with no human occupants. An inconvenience obviously arose for the last of those concepts if the land was bigger than first thought and it turned out that there were, after all, some people already living there. In response, a most offensive gloss was added by European lawyers to the effect that “primitive tribes” did not count, as they had no recognisable legal system. The Australian Aborigines found themselves labelled as such.

Lumped in with the same fate were the inhabitants of the tiny Murray Islands, three islands with a combined area of just nine square miles, situated in the Torres Strait (the sea between Australia and Papua New Guinea). The islanders were descendants of the Meriam people, whose ancestry long predates European settlements in the South Pacific. As the Australian colony grew, the colonial office in London and the fledgling local administration decided to extend the boundaries, and to that end the Murray Islands were declared annexed to the colony of Queensland in 1879.

The problem was that no one took the trouble to tell the locals about the annexation before the event. Just over half a century later, in 1936, one Eddie Mabo was born on Mer, the largest of the islands (pictured above). His was not an easy start in life. His mother died while he was in infancy. As a teenager he was exiled by the strict island council for a prank. He worked a few jobs before a stint as a gardener at James Cook University in Townsville. There he took exception to a conversation about ownership of land on the islands: as far as he was concerned his people, never having agreed otherwise, remained the rightful owners.

In 1981, Mabo addressed a conference at the University about the inheritance system on the islands, and thereafter a decade of litigation in his name began to determine the question of the ownership of the land. It was finally concluded in mid-1992 by the High Court of Australia (Mabo v State of Queensland (No 2) (1992) 175 CLR 1). The court declared that there was a system of native title (namely, interests and rights of indigenous inhabitants in land, under traditional laws and customs) recognised by the Islanders in 1879, which had not automatically been extinguished by the exercise of sovereignty by the Australian government (subject to certain exceptions). It was further declared that the traditional title had not been extinguished by subsequent legislation or executive act and could not be extinguished without the payment of compensation to the traditional titleholders. Further, the land was not Crown land within the meaning of the relevant Australian statute.

The effect of the ruling was emphatically to pour the doctrine of terra nullius with regard to the islands back into its bottle.

Not unusually for a cause célèbre, much of the reaction in the popular press combined hysteria with inaccuracy, but as things transpired the decision led neither to the extinction of private property rights as feared by some, nor to ultimate satisfaction of all Aboriginal claims as hoped by others. Subsequent cases fleshed out the caveats in the original judgment, including conditions for the establishment of native title and a reiteration that native title extinguished by a sovereign power could not later be revived, because thereafter only the sovereign power could create title.

Many Aboriginal claims have since been settled rather than proceeding through the courts, though of course the conduct of the negotiations would have been against the backdrop of the Mabo ruling. The importance of the case and the resultant vindication of Eddie Mabo's actions remain unquestioned (see Dr Kevin Lindgren QC, "Native Title in Australia" in Cases That Changed Our Lives, LexisNexis, 2010).

For Eddie Mabo himself, however, tragedy seemed to be present as much as triumph. He was denied permission by his own community to return to his dying father, on the basis that he was a trouble maker .... Then, with even crueller irony, he contracted cancer and died five months before the High Court gave the judgment for which his name will always remain legal shorthand.

So much for das Pathetisch-Erhabene. The native title doctrine has no relevance in England, but that does not mean Eddie Mabo's story should not be of interest to English lawyers. It was rather fatuous of Mr Cameron to lump the blame for present day Kashmir on the British: the governments of India and Pakistan are large and sophisticated entities who should not be excused blame for a situation that has been in their hands for decades.

By contrast, Eddie Mabo and his people, as we have seen, had their land taken by a decree of which they were not even told, and were not in the position of a sovereign state to do anything about it. A century of presumption by those who governed Australia did not alter the (im)morality of the situation. By 1992, of course, responsibility had long passed from Britain to the independent state of Australia, who at last set about righting the historical wrong.

The death of Osama Bin Laden

2011-05-04T17:00:00.006+01:00

Published in Halsbury's Law Exchange here

It did not take long for the newspapers to invoke some stereotypical American imagery with regard to the death of Osama Bin Laden. Dr Tim Stanley in the Telegraph wrote shortly after the news broke that

America is a nation of laws, but beneath all that fine sentiment about procedure there is a stronger hunger for natural justice. ... It was in the American wilderness that the individual was once again freed to pursue their own kind of rough justice. The assassination of Osama is as American as the shootout that killed Billy the Kid. It is a personal Wild West drama writ-large on the global stage.

His article was accompanied by the picture of a cowboy riding into the sunset, in case anyone missed the point.

The theme of rough justice versus due process appears more than once in the Western genre. Indeed, one of the most eloquent arguments against mob rule comes from the famous horse opera The Ox-Bow Incident. In the film a hurriedly-assembled posse responding to the murder of a rancher by cattle rustlers discovers to its horror that it has mistakenly killed three innocent people, while the sheriff has caught the real villains in the meantime. One of the innocent men wrote a letter to his wife just before being killed. It is read out by a member of the chastened mob towards the end of the film:

My Dear Wife,

Mr. Davies will tell you what's happening here tonight. He's a good man, and he's done everything he can for me. I suppose there's some other good men here, too, only they don't seem to realize what they're doing. They're the ones I feel sorry for, 'cause it'll be over for me in a little while, but they'll have to go on rememberin' for the rest of their lives. A man just naturally can't take the law into his own hands and hang people without hurtin' everybody in the world, 'cause then he's just not breakin' one law, but all laws. Law is a lot more than words you put in a book, or judges or lawyers or sheriffs you hire to carry it out. It's everything people ever have found out about justice and what's right and wrong. It's the very conscience of humanity. There can't be any such thing as civilization unless people have a conscience, because if people touch God anywhere, where is it except through their conscience? And what is anybody's conscience except a little piece of the conscience of all men that ever lived? I guess that's all I've got to say except - kiss the babies for me and God bless you.

Doubtless the American authorities would prefer an analogy with the legend of the OK Corral instead, where the outlaw Clanton gang received its lawful dues at the hands of Wyatt Earp and his fellow lawmen during the eponymous gunfight.

The point is, of course, whether or not Bin Laden’s killing was lawful or a version of the Ox-Bow style mob. Two initial questions arise: (i) whether the US had the consent of the Pakistani government to carry out the raid on Pakistani soil; and (ii) whether the operation was intended to be a targeted killing, or whether they had hoped to capture Bin Laden but ended up killing him in self defence.

Neither can be judged conclusively at this early stage, but in the exceptional circumstances of the case, neither carries much weight. Reports suggest that the Pakistani government was not told in advance, nor did the US have some sort of prior agreement to carry out raids when it saw fit, although it has been undertaking strikes from drones in the north of Pakistan for some time. But Pakistan has not raised a formal objection to the raid, nor does it seem likely that it will. This may have something to do with the alarming fact that Bin Laden was apparently able to live for a long period of time in a rather distinctive compound very close to the country’s premier military academy.

As to the second point, President Obama initially indicated that the raid was an assassination, though it has since been suggested that if Bin Laden had surrendered he might have been taken into custody instead. But a measure of realism has to be brought into the equation here. I recall some debate in the United Kingdom Parliament during the early stages of military operations in Afghanistan after 9/11. It was suggested that if found by British forces Bin Laden would be brought back to the United Kingdom to face a fair trial. This, it was said, was in contradistinction to his acts of mass murder: the UK, as a civilised nation, would act according to standards its enemies would not.

Such sentiments are entirely true, entirely admirable and, in the case of Bin Laden, entirely unrealistic. It is possible to preach the highest standards of law and order from within the well-upholstered and comparatively safe confines of the Houses of Parliament. It is (almost always) possible to abide by those standards when dealing with “ordinary” criminals within the jurisdiction. But it is quite another thing when one is a soldier on the front line, let alone when one is a special forces’ soldier conducting a raid in hostile territory. The Navy Seals who entered Bin Laden’s compound would not have had the chance to negotiate or subdue anyone without unacceptable risks to their own lives, and it is preposterous to think otherwise. They inflicted minimal collateral damage (initially it was said that one of Bin Laden’s wives was killed whilst he used her as a human shield, but one would struggle to call that collateral damage, and in any event it transpires she may only have been wounded after rushing the troops herself). If they had used a safer option from their point of view, such as an airstrike, then much greater collateral damage would probably have occurred and, moreover, it would not have been possible to prove that Bin Laden had been present.

It would seem therefore that no objection will be sustainable either on the basis that the US mounted the raid inside a sovereign state without permission or on the basis that Bin Laden was killed rather than captured – that is, of course, assuming that there was just cause to assassinate Bin Laden in the first place.

In that respect a helpful discussion has been published on the blog of the European Journal of International Law here. The blog notes that there are three applicable principles of international law: jus ad bellum (just war), international humanitarian law, and international human rights law.

It is slightly cumbersome to speak of just wars, or any other type of “war” when one is not dealing with a conflict between two sovereign states. The nature of the West’s actions against organised international terrorism is not as simple to analyse as, say, the United Kingdom’s war against Argentina over the Falkland Islands (which had a defined battlefield and accepted rules of war, both of which both sides by and large observed). But Bin Laden had avowedly declared his belief that he was engaged in a “war” with the West, in particular the US, and by his organisation had prosecuted it in every way he could, including a series of attacks such as the embassy bombings and the suicide attack on the USS Cole in the late twentieth century. He consistently called for more such attacks as well. The fact that he had made few public statements in recent years, and that his ability to organise attacks appears to have been severely restricted, changes nothing: it is not as though he ever suggested a truce or retracted any of his previously stated intentions.

Accordingly, the US was justified in attacking him out of self defence, which conforms with traditional notions of a just war and is permitted by art 51 of the UN Charter. That Al Qaeda is not a sovereign state as such should not mean it can fall between stools of international law, as it were, and not be attacked out of self defence. Pakistan as a sovereign state could raise an objection about a hostile act on its soil, but as discussed it has not and (in all likelihood) will not.

As to the international humanitarian law aspect, I am content to adopt the analysis of the EJIL that

it either does not apply at all as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

Which leaves international human rights law. The United States is not a signatory to the International Criminal Court, and argues that the International Covenant on Civil and Political Rights does not apply extraterritorially. Both stances are controversial, and I would maintain that some form of human rights laws should have applied to Bin Laden one way or another: human rights, if they are to mean anything, have to apply to all. But that does not mean Bin Laden’s rights were violated. Given that the US was entitled to attack him out of self defence (and by all accounts he made no attempt to surrender) his death was not unlawful on any view.

It is right to examine the circumstances including the legality of Bin Laden’s death, however despicable an individual he was – indeed precisely because he was such a despicable individual who never afforded his victims any such civilised standards. It is equally right to acknowledge that capturing him alive was never going to be a realistic possibility. He has justly met his end.

A cross to bear

2011-05-04T11:05:00.000+01:00

Published on Halsbury's Law Exchange here

I have written a number of posts on religion and the law over the past few months on Halsbury’s Law Exchange and elsewhere. On each occasion I have sought to work out principles of equality and freedom for general application. Among other things I have argued that employers should be free to set their own uniform standards, including in relation to religious symbols; and that employees seeking exemption from those – or indeed any of their employment duties – should agree terms beforehand or lump it. Freedom of religion does not provide religious followers with exemptions from the law applicable to everyone else.

Obviously employers ought to be fair in their uniform policies. They should not ban some religious symbols and activities but allow others, unless they have good grounds for doing so. If they run a Christian bookshop, for example, they should be entitled to ban other religious symbols and require that their staff have a pretty sound knowledge of Christianity. Or they can set up a Halal or Kosher sandwich shop and expect staff to produce food accordingly.

All of the above points apply to a story occupying some press attention of late. It seems the dispute has been settled, but the point may well arise again in future and therefore a belated post is still appropriate.

I am referring to the story of the van driver who was told to remove a palm cross from his dashboard. His employer did not want any visible religious symbols on its vehicles.

On the face of it, the employer was entitled to set its own policies on such matters; a policy excluding all religious symbols would be a rational one; and, provided it was applied equally (ie not some religions and not others), then there would or should be no legal grounds to interfere with that policy.

There is, however, another well-established principle of the common law that ought to have been observed, namely the maxim de minimis non curate lex. Or, if we are to discard the Latin, "the law does not concern itself with trifling things".

Did it really offend anyone that the driver had a common symbol on the front of his van? Apparently so, since there was a “complaint”, and indeed if one looks far enough one can probably find someone offended by anything anywhere. That would not necessarily provide grounds for the law to intervene. The better question would be should anyone have been offended? Surely not in this instance (and that is without taking into account what vans in my experience usually have displayed on their dashboards).

It is not as if the driver was asking for special privileges such as days off for religious observance or exemption from regular duties. Nor that any rational customer would be put off by viewing the symbol; it can hardly be compared to a symbol of a fascist organisation or similar.

I am reminded of one of the stories that beloved of the tabloids, namely the banning of Easter and other Christian celebrations by local authorities on the basis that they might offend the non-Christian constituents. Most such stories are apocryphal. Chances are if any are true that the non-Christians would be more offended by the assumption that they would be offended. Again, the test should be objective, not subjective - should anyone be offended. A sense of perspective, or proportion – or even a sense of humour – might not go amiss on such occasions.

Super, hyper and possibly even-larger-still injunctions

2011-04-28T14:52:00.001+01:00

Published in Halsbury's Law Exchange here.

It used to be said that there was no such thing as bad publicity. One would have thought that in the present day of much looser public morals - and an even looser definition of the word “celebrity” - that saying would be rather more appropriate than ever.

Yet an increasing number of public figures are now spending large sums of money using up the precious public resource of the courts in order to suppress details of their private lives and misadventures. Over the past decade we have seen the growth of an actionable right to privacy, and the ability to protect that right by ever more draconian injunctions. Both developments have been highly controversial, to the point where the Master of the Rolls has set up a committee to review the use of media injunctions. Its report is due shortly.

The modern legal right to privacy is grounded in art 8 of the European Convention on Human Rights (ECHR). In terms of press revelations it comes squarely into conflict with the right to freedom of expression as guaranteed by art 10. The ECHR has made clear that where both articles are engaged they are to be treated as of equal weight, and it is therefore necessary to balance them according to the facts of each case. Relevant factors in that exercise include whether the act in respect of which privacy is sought is a matter of public interest, and whether any innocent people (such as an applicant’s children) will be harmed by its disclosure.

One additional factor in the UK is s 12 of the Human Rights Act 1998, which provides for a heightened importance of freedom of expression. That suggests that arts 8 and 10 should not in fact be of equal priority, but rather in favour of the latter.

The first significant modern privacy case was that of the supermodel Naomi Campbell, who fought a high profile action against a newspaper over whether the latter had breached her rights by publishing pictures and stories about her visiting a drug treatment centre (Campbell v MGN Ltd [2005] 4 All ER 793). In her favour was the point that the clinic had provided her with a form of medical treatment, something quintessentially confidential. On the other hand, taking drugs involves the commission of a criminal offence, which one might have thought should weigh against any right to privacy on the facts of the particular case.

Campbell has been followed down the legal catwalk by a string of other “celebrities” including Max Mosley, who famously sought redress after pictures of a lurid encounter with prostitutes were published without his consent. Ribald details notwithstanding, it was a private occasion and most people would object to someone filming their sexual encounters without their knowledge or consent.

There are accordingly occasions in which a right to privacy (over and above traditionally confidential information such as commercial secrets, medical details and the like) is justifiable in principle, despite the erosion of free speech that it necessarily entails. It has to follow that interlocutory remedies to preserve that right are also justifiable – the right to privacy would be meaningless if anyone was free to print something prior to trial.

Moreover, there are also circumstances in which justice demands absolute confidentiality, such as where it concerns an ongoing criminal investigation, or issues of national security, or legitimate protection of commercial interests. This post is not concerned with any of those three situations but rather the developing notion of privacy for one’s private life.

In that respect there is cause for disquiet. Can it be right that footballers are able to clog up the courts by trying to suppress the fact that in dressing room parlance they have been indulging in one too many away games? The right to freedom of expression and the principle of open justice are fundamental to an open and democratic society. They should not lightly be interfered with. While the extra marital affairs of celebrities might (and should) be a matter of supreme indifference to anyone not personally involved, it does not follow that the law should intervene to silence the press. At the least the burden should be firmly on the applicant to show why the state should intervene on his or her (usually his) behalf.

In JIH v News Group Newspapers Ltd [2011] 2 All ER 324, the Court of Appeal set out principles to be applied in such cases. These are eminently sensible and need not be set out here again. I would however endorse the per curiam statement of the court that a lot of the concerns about injunctions from the point of view of open justice would be addressed if courts complied with the principle that judgments and orders should be made publicly available, and those judgments and orders should disclose as much as possible about the case.

As to the fact of making injunctions at all, however, I would offer the following observations.

First, there should rarely be a right to silence details of personal immorality, still less criminal activity such as drug taking. Scarce public resources such as the courts ought not to be expended on a wealthy few hushing up their own moral misdemeanors, which are the result of their freely chosen actions. Freedom of speech needs jealous guarding, and there will be casualties.

Injunctions suppressing sexual misadventures would not likely occur in the US, with its robust tradition of free speech under the First Amendment. If President Clinton could not claim privacy to keep his extra-marital activities out of the press, it would seem unlikely anyone else would stand much of a chance.

The argument in favour of freedom of speech is all the stronger where the conduct in question involves a breach of trust, such as an employment relationship (as indeed in Clinton’s case). Certainly there is an argument that children of the parties should be protected, but that may not be decisive; the state does not guarantee parental infallibility in all respects.

The second point concerns Parliamentary privilege. Under art 9 of the 1689 Bill of Rights, free speech in Parliament is absolute. That priceless jewel in our Constitutional crown exists as the ultimate protection of Parliamentary supremacy and, of course, democracy itself. Recently such protection was invoked by an MP in order to reveal the fact that Fred Goodwin, former head of RBS, had obtained an injunction which went as far as to prevent Goodwin from being identified as a “banker”. (Various wits on the internet promptly observed that Goodwin’s performance as such did not merit the description in the first place). It has been suggested that a “hyper injunction” would preclude a member of public telling an MP about the existence of such injunctions in the future, lest the MP then render the injunction worthless by disclosing it under the protection of art 9.

If that is the case (rather than media misreporting) it would seem clearly wrong. The right to discuss something with an MP in the strictest confidence should be unfettered. If the MP then wrongly discloses anything outside Parliament then, rightly, he or she will face the full legal consequences. Within either House, however, the protection of art 9 is absolute and it is for Parliament itself – and the electorate – to censure an MP who abuses it. The member of the public who disclosed the information should be able to claim the protection of privilege, akin to legal privilege which would apply if he or she had discussed something with a solicitor. Parliamentary Privilege is not confined to actual words spoken in the Houses, but extends to actions that advance or are ancillary to proceedings in the Houses (see eg Pepper v Hart [1993] 1 All ER 42 at 67–68).

The final point is one which applies to many of the classic debates concerning free speech. To put it bluntly, all of the above discussion may be rendered largely irrelevant by something out of the hands of the courts and Parliament. I refer of course to the internet. The English courts can issue contra mundum injunctions, but the reality is that since the law (for present purposes) has no reach beyond these shores, it has become – for better or for worse – very much harder indeed to suppress information than ever before. Someone outside the jurisdiction might publish something on the internet that is then easily accessible to British citizens. It would still be an offence for a British citizen to download and disseminate the information, but readers will need no elaboration of the reality of such a situation.

The only recourse for the government in those circumstances would be to try and censor internet search engines, in the manner of a few largely non-admirable totalitarian regimes elsewhere. I trust such a step is not likely to occur in this country.

Appointments to the Supreme Court, or the Assumption of Sumption's Ascension

2011-04-20T12:09:00.004+01:00

Published in Halsbury's Law Exchange here.

I was not in favour of the establishment of the Supreme Court, for the simple reason that there was nothing wrong with the old Appellate Committee of the House of Lords. Quite the opposite: it was one of the most esteemed judicial institutions in the world.

Nevertheless, the Supreme Court is permanently with us and it is therefore imperative that we make the best of it. Provided the standard of the actual judgments is maintained - which so far it has been - one can expect the court to enjoy the same global respect as its predecessor.

In fact, in one significant respect at least - the requirement of open justice - the court represents a tangible improvement on its predecessor. Moreover, despite having the same constitutional position as the Appellate Committee, the court has hinted at a greater willingness to assert itself against Strasbourg. At the same time, however, there have been some teething problems, which betray the haste with which the court was established.

First, there has been some thoroughly needless and confusing chopping and changing of the titles of judges. Secondly, the government seemed for a short time under the illusion that the court was nothing more than a department of the Ministry of Justice, which could be freely tinkered with according to the whim of the moment (though I suppose we can put that down to ignorance on the part of the relevant civil servants rather than a fault with the court itself). The third problem, and the subject of this post, concerns the process of appointments to the court.

Traditionally of course the bench has been drawn from the bar. In the lower courts there are two sound (but not necessarily decisive) reasons for this: the need for the judge to make findings of fact and also to determine issues of procedure. Both those roles are part of advocates’ stock in trade but are not an area of expertise for other legal practitioners. Neither forms part of the Supreme Court’s function, however, and therefore the likes of solicitors, employed lawyers or legal academics could in theory have equally suitable experience.

It would be unusual but not entirely unprecedented to appoint candidates directly to the highest court: one of the finest twentieth century law lords, Lord Reid, had never been a judge before joining the House of Lords. Neither had Lord Radcliffe nor Lord Carson.

Perhaps because of those factors, early in the Supreme Court's history a story emerged in the legal press that the well-known barrister Jonathan Sumption QC was to be appointed directly from the bar.

Mr Sumption is one of the country's leading silks, with a towering intellectual reputation. Rumour has it that he was once introduced in court by his opponent as the most intelligent man in England (the third counsel appearing in the case was then introduced as ipso facto not the most intelligent). Before reading for the bar he was a history don at Oxford, and in recent years has found time in addition to running a leading commercial practice to produce a weighty multi-volume history of the Hundred Years War.

Details of What Happened Next are set out in this article from the Times. Apparently Mr Sumption's proposed appointment was strongly opposed by the Court of Appeal judges, on three grounds. First, it was unfair: instead of working his judicial passage as they had, he had enjoyed the much higher income of the bar for much longer. Secondly, if he was permitted to leapfrog all the other court divisions it would be a disincentive for other top practitioners to apply for the bench, as they might hope to do the same. Thirdly, Sumption was obviously untested as a judge, although he had sat at first instance on the odd occasion as a deputy High Court judge.

Some Supreme Court justices also considered that the appointments process might be unlawful, which was expressed in a submission to the Lord Chancellor by Lord Mance. That was seen by some as unfortunate given that Lord Mance is married to Lady Justice Arden, a leading candidate for a Supreme Court appointment herself (both as a leading judge and, being female, a way of making the court more representative).

In the event, Sumption withdrew his candidature, despite having incurred the personal inconvenience of winding down his practice.

It now transpires that Mr Sumption is to be appointed after all. On this occasion it seems he has not found time to clear his desk; instead he has apparently asked for his appointment to be delayed to so he can finish the substantial litigation between two Russian tycoons in which he is instructed. The lucrative nature of that particular brief has not gone unnoticed, and is being cited as another example of Mr Sumption enjoying the money of the bar rather than undertaking the public service of the bench. Perhaps it might be a quid pro quo for Mr Sumption having cleared his desk for nothing last time. Either way, he is scarcely out of pocket if one considers the amount of extra time he has had at the bar compared with other Supreme Court justices.

There are several observations to make about what we might call the assumption of Sumption's ascension. First, although he will not alter the demographic composition of the bench himself, his appointment straight from the bar might be a modern precedent for others who would.

Secondly, if he had been told originally that his application would be successful, only to have it withdrawn, it would not reflect well on those responsible.

Thirdly, missing in all the discussion is the point that when it comes to developing the law, the Court of Appeal is in fact more influential than the Supreme Court, because it hears far more cases. It follows that the very best legal minds ought to spend at least some, if not most, of their judicial careers on the Court of Appeal, unless perhaps they lack the requisite expertise in procedural law (which as a practising barrister Sumption does not).

Fourthly, the controversy should not have happened before and should not be happening now. The process of appointments should have been one of the foremost questions when the Supreme Court was being devised. Issues such as those concerning Sumption should have been identified and resolved before the doors on the old Middlesex Guildhall on Parliament Square were ever opened.

Finally, however, one is relieved to be able to say that Sumption's ability to do the job is beyond question, as one of England's finest legal minds. Therefore, despite the unsatisfactory history of his (so far non-)appointment, no lasting damage to the institution will be caused if and when he finally begins his tenure.

The burqa ban in France

2011-04-14T00:05:00.003+01:00

Published on Halsbury's Law Exchange here

On 11 April a new law took effect in France, banning the wearing of the burqa in public. Though there are no plans for any equivalent law in Britain, it would be idle to pretend the controversy has no relevance here.

At first sight it seems absurd that the state should regulate what clothing people choose to wear. Freedom of expression and freedom of religion require – as a strong starting point at least – the ability to display religious symbols and comply with religious tenets as to dress in public.

As ever, things are not that simple. The British state already regulates what people wear in public, for example by precluding indecently exposure. The limits of that regulation are always disputed but there is no argument for it to be repealed in toto. Further, wearing clothes with racist or otherwise offensive slogans might attract a public order prosecution. Accordingly, banning the burqa in public would not be a wholly unprecedented measure.

Whilst many might wear the burqa voluntarily, both by way of adherence to their religion and perhaps also a rejection of the oversexualisation of women in Western society, others may be forced to wear it. The new French law acknowledges the difference between the two situations: the wearer will face a fine of €450 and/or a course in “citizenship”, but a man who forces a woman to become a wearer will incur a fine of €30,000 and imprisonment. One would presume in the latter situation that there would be no prosecution of the woman.

It is not relevant that very few women (under 2,000 according to this report) actually wear the burqa in France (though if anything that is a reason in favour of the ban). Nor is the French government’s actual motivation for the ban (the subject of some speculation) relevant to whether it is morally justifiable or not.

All that said, I see no case at present for a ban in the UK. The main problem is that there are no cogent statistics showing how many women wear the item voluntarily as opposed to under duress. Given the inherent difficulties in compiling any such statistics (someone in an abusive relationship will probably not feel able to answer freely, even in an anonymous survey) it would seem unlikely there ever will be – though if anything that lends support to a ban. More importantly, however, anyone in an oppressive relationship will not be saved from abuse simply by the law preventing her from wearing a burqa in public – indeed, it risks making her a criminal as well as a victim. There is certainly a justification for the state acting against an oppressive husband who forces his wife to wear the burqa, but a burqa ban will not of itself release anyone from oppression and in any event there are already laws against domestic abuse, as well as private and public forms of assistance for its victims.

Arguments about whether the Koran really does mandate the wearing of the burqa or whether the item is simply a manifestation of extremism or a non-religious cultural practice do not settle the issue. The state is not in a position to adjudicate theological disputes, and freedom of religion precludes it from doing so in any event.

In essence, if a woman has been forced to wear the burqa by an oppressive husband she should have the right and the means (provided by the state) to leave that relationship if she wishes. If she has chosen to wear it voluntarily, her motivation – religious, cultural, fashion or other – is no-one else’s business. The resources of the state should be directed at identifying and addressing domestic abuse, not arresting people on a speculative basis because of their clothing.

Notwithstanding the above conclusion, there are particular circumstances in which both the state and private entities can and should ban the burqa (and various other items of clothing, both religious and non-religious). First, state schools should be permitted to ban religious clothing as part of the separation of church and state.

Secondly, banks, airports and other places with serious security concerns should be entitled to require burqas to be removed on their premises, as they do for anything else covering the face such as motorcycle helmets.

Thirdly, the rule of open justice – a cornerstone of the common law – should trump the right to wear a burqa. Accordingly, a witness may not insist on wearing the burqa whilst giving evidence, nor should the court be cleared whilst she is doing so. The present guidance to the contrary is, I suggest, unlawful.

Finally, I would hesitate before condemning the French, despite disagreeing with the ban. There is much to be admired in the French concept of laïcité, as foreshadowed by what I have written in earlier posts about law and religion. As a manifestation of that concept a ban may well be more justifiable.

Prisoners' voting rights and Britain's relationship with Strasbourg

2011-04-12T11:02:00.003+01:00

Published in Criminal Law & Justice Weekly, Vol 175, 9 April 2011, p 229

Frances Crook, the (superbly named) Director of the Howard League for Penal Reform, has argued passionately on prisoners’ voting rights and the European Court of Human Rights (the ECtHR) (CL&J Vol 175, p82). Both issues, still regularly appearing in headlines, deserve further comment.

Ms Crook describes the right to vote as “fundamental”, without defining the term. Yet no-one suggests that children or the clinically insane should have the franchise. "Fundamental", therefore, cannot mean "universal".

The rationale for withholding the vote from children or the insane is that both lack the intellectual maturity to make any meaningful contribution to the democratic process. One could anticipate a chaotic result from the aggregate of their votes. Further, children acquire the vote when they become adults (as would the mentally ill if cured), so it is wrong to consider them excluded as a class.

What then of prisoners? Obviously, commission of a crime does not of itself rob one of the intellectual capacity to vote. Nor is disenfranchisement a necessary component of imprisonment. We have moved on since the days in which prison constituted “civic death”. Moreover, allowing prisoners the vote would assist them in developing the notion of participating in society, a key step in rehabilitation.

As against that, prisoners already have the right to vote – before they choose to become criminals. They will regain the right once freed. To call them “vulnerable” as some have sits uneasily with the fact that many are imprisoned to protect the public. Rehabilitation may be the ideal outcome of prison, but there has to be some element of punishment as well.

The notion of the social contract entails accepting the protection and benefits conferred by the state, but in exchange for duties on the part of the citizen. Rights should not exist without responsibilities. Foremost among responsibilities is the criminal law. Having chosen to break that law, prisoners are on shaky grounds demanding the right to have a say in making it for everyone else.

Then there is the ECtHR’s compromise in Hirst, which precludes a blanket ban but not necessarily a more limited restriction (although the ECtHR has arguably gone further since). The main point, however, is that the issue of prisoners’ voting is far from clear cut. That being so, we come to the second question, namely whether Parliament or the ECtHR should ultimately decide.

Ms Crook argues “the law is the law”: Parliament agreed to the ECtHR’s jurisdiction and is therefore stuck with it. To pick or choose which rulings to follow would clearly breach the rule of law.

With this I agree, but that is not to deny that there are serious questions about the ECtHR. Its appointments process has been criticised as too political, with some judges insufficiently experienced and some not even fluent in the relevant languages. It is also a triumph of tokenism over logic that small political enclaves have equal representation with the likes of Germany and Britain.

The ECtHR was established to be a check on national governments. But what if the ECtHR itself starts exceeding its authority, or regularly produces decisions of unacceptably poor quality? It may become so aggressively expansionist – or simply incompetent – that the UK has to leave if it is unable to persuade fellow members of the need for reform. There is already cause for concern given that the ECtHR’s critics include someone of the reputation and standing of Lord Hoffmann. A “living instrument” the Convention might be, but it should not be a licence for the ECtHR to micromanage national legal systems.

Nevertheless, those are reasons for reform, not excuses to pick and choose which currently binding rulings to follow. The fact is that Britain has to accord the ECtHR’s decisions the authority conferred by the appropriate constitutional documents which it has willingly signed, unless and until it unsigns them.

This involves some niceties regarding the doctrine of Parliamentary supremacy. As with membership of the EU itself, the most satisfactory analysis would perhaps be to say that Parliament has, for the duration of Britain’s membership, delegated sovereignty to the necessary extent, or accepted a restriction on its own powers – although it still retains the power to withdraw at any time and reassert its former constitutional position.

Currently the Supreme Court is trying to resist another of the ECtHR’s decisions in the Horncastle case. It seems improbable that it will be in a better position to do so than Parliament, but it is another indication that the controversy over Britain’s relationship with Strasbourg is set to increase.

As divisive as the issues are, one can be against enfranchising prisoners but in favour of complying with the law as it presently stands. Equally, one can be in favour of allowing prisoners to vote and of demanding reform of the ECtHR – indeed, logic suggests that the ECtHR’s supporters should also be the strongest advocates for its reform.

Religion and the law: squaring the circle

2011-04-06T17:24:00.002+01:00

Published in Halsbury's Law Exchange (in slightly diluted form) here.

Mr Aiden O’Neill QC has written a counterpoint to recent developments in law and religion, a subject on which I have written several recent posts. His view deserves a response.

Mr O’Neill summaries the present state of the law as follows:

“The courts analyse such cases from a discrimination law perspective by asking whether a person without religiously based views would have been permitted to act in any of these ways. If both a religious and a non-religious person would not have been permitted to do these things, then there is no discrimination on grounds of religion or belief.”

He criticises this approach on the basis that there is a distinction between informed religious beliefs and secular beliefs; the former, he argues, are “intimately tied into the moral values to which [the religious] would adhere, by word and deed. Failing to act on those beliefs is not an option for the religious, because a failure so to act expresses for them a denial of their beliefs.”

There are several responses. First, it would be of small consolation to someone on the receiving end of what would otherwise be unlawful discrimination to be told that the discriminator was sincerely following a prescribed moral code. I doubt, for example, whether someone deemed untouchable by hardline adherents of the Hindu caste system, or excluded by followers of the former Dutch Reform Church, would have any sympathy for Mr O’Neill QC’s views. That those are extreme examples does not change the fundamental principle of non-discrimination.

Secondly, while it is true that some religious people who have been in the courts recently may have been genuine adherents of a mainstream religion who were acting according to deeply held beliefs, others seeking a religious-based exemption from anti-discrimination laws might simply be religious adherents of convenience, who offer a religious belief as a straw defence to justify bigotry held on other grounds. The courts are ill-equipped to judge anyone’s piety.

Thirdly, one would also have to define a religion, another exercise courts are not well placed to undertake.

Fourthly, there would have to be a list of acceptable or unacceptable religious beliefs for the purposes of legal exemption. No-one would support on religious grounds stoning someone to death for adultery, or withdrawing a female child from education, or forced marriages, or female genital mutilation. But compiling such a list would be an invidious task and bound to be over or under-inclusive. Alternatively, some principles would have to be formulated for the courts to implement on a case by case basis, which would likely lead to unacceptable uncertainty.

Mr O’Neill argues that, on his analysis, being religious is akin to having a disability: the law requires that account be taken of disability and appropriate measures taken to place the disabled on an equal footing with those without that disability. He says the same should occur for religions. The analogy is false. For a start, there is no choice about having a disability, whereas people often abandon or otherwise modify their religious beliefs.

Mr O’Neill would doubtless respond that for many it is not at all possible to change their beliefs, still less is it reasonable for the law to require them to do so. Yet the analogy still does not hold up: there is nothing about having a disability which affects anyone else’s rights, still less anyone else’s right not to be discriminated against. One person having a disability is totally irrelevant to anyone else’s right not to be discriminated against on the ground of race, gender, age or sexual orientation, for example – no reasonable adjustment would have anything to do with those grounds.

Underlying Mr O’Neill’s thesis is the assumption that religious beliefs are of a different nature to secular beliefs of any form and, he inevitably has to argue, somehow more deserving of the law’s protection. He contends that “there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry.”

This argument is not sustainable. Some religions might constitute deeply held belief systems with centuries of provenance. Others might be bizarre and extremist offshoots. Recent cases have shown the difficulties inherent in distinguishing one from the other. Moreover, someone might write a scholarly thesis on the dangers of religion and seek to exclude religious people from their public establishment accordingly – not all who discriminate on secular grounds are unthinking bigots.

The overarching principle regarding religion and the law is that one is entitled to respect for the right to hold beliefs, but not 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.

Law and Libya

2011-03-23T23:24:00.003Z

Published on Halsbury's Law Exchange here.

At the time of writing, British aircraft and ships of the Royal Air Force and Royal Navy are engaged in enforcing a “no fly zone” over Libya pursuant to UN Resolution 1973. The resolution authorises “all necessary measures” to prevent a humanitarian disaster. By a lay definition, flying military jets into a sovereign territory and attacking its forces might also be called "war".

Either way, the governments of all the forces engaged in Libya have been at pains to stress that they are acting, and only will act, in accordance with Resolution 1973, and hence are abiding by international law.

There is no doubt that all participants will be eager to avoid repeating mistakes made in the US-led invasion of Iraq, and the legality of the actions in the eyes of the United Nations is one example. In the case of the United Kingdom, the decision to invade Iraq has been reviewed by the Chilcot Inquiry, whose final report is still awaited. Although the inquiry is not an international law tribunal, its findings on the Attorney-General’s advice will be considered authoritative. At this point it is fair to say that the UK Government’s position that the war was legal remains controversial.

If, however, one casts one's mind back to an earlier conflict of the most recent Labour Administration, one finds something rather striking with the Kosovo War of 1999. The United Nations charter authorises military action only in accordance with a Security Council resolution or in self-defence. No resolution was ever obtained with regard to the Kosovan conflict and NATO could not claim to have been acting in self defence.

The legality of the war was never subsequently ruled upon by an international tribunal such as the International Court of Justice. But it was studied in detail by the House of Commons Select Committee on Foreign Affairs, which can be considered to express the received view of the United Kingdom government on the point. The committee concluded that the war was of “dubious legality” under international law, although it went on to maintain that it was justified on moral grounds, in order to prevent a humanitarian disaster.

Such a claim can only be made because the aftermath of the war has been judged a success by the court of public opinion. If the result had been bloodshed on the scale of Iraq, then any good intentions or counter-scenario would have quickly been dismissed. Conversely, had Iraq somehow ended quickly with a stable, respected local government in place, no inquiry would have been called seven years later; instead the politicians responsible would have been feted as visionary international statesmen, as I argued in the New Law Journal last year (07 May 2010, Vol 160, Issue 7416), and international law issues have long been brushed aside.

Precisely the same factors apply to Libya. The intervention was prompted by fears of a bloodbath if Gaddafi’s forces had moved into rebel-held Benghazi. The authorising resolution is very broad in its terms – “all necessary measures” short of an occupying force. At least arguably, this does not even rule out the use of ground troops, provided that they withdraw in short order, or indeed if they are invited in by a putative sovereign authority (that is, rebel-held areas that purport to secede from Gaddafi’s regime). The question remains however as to whether the resolution permits – or even obliges – the international forces to intervene if rebel Libyan forces, emboldened to strike against Gaddafi’s depleted forces, start to inflict significant collateral damage in the form of civilian casualties.

From the perspective of international law, therefore, the intervention can be said to be legitimate as prosecuted to date. If the civil war is concluded swiftly and with few civilian casualties, the UN action will be acclaimed. If, however, it all goes wrong then the UN approval will be a flimsy defence for the reputation of the politicians responsible for involving British forces. It may be that civilian casualties will reach unacceptable levels, forcing an end to the campaign. Or a stalemate may ensue, but one or both sides will then inflict human rights abuses against anyone thought to have sided with their opponents. Or something no-one has yet thought of may occur. The only law that is prevalent in every war is the law of unforeseen consequences.

Arguably the greatest Western postwar general has been David Petraeus. Famously he turned to an embedded reporter at the start of the invasion of Iraq in 2003 (at the time Petraeus commanded the 101st Airborne Division) and precisely formulated the question which needs to be asked above all others by any politician or General contemplating military action: “Tell me how this ends.” This morning, according to both the Daily Telegraph and the Washington Post, the answer is not clear.

Lord Neuberger MR on Open Justice

2011-03-22T12:30:00.003Z

Published on Halsbury's Law Exchange here.

On 16 March, Lord Neuberger MR delivered the Judicial Studies Board Annual Lecture 2011, entitled “Open Justice Unbound?” The speech contained his usual mixture of high erudition and a strong sense of practical justice, and deserves wide dissemination.

This post will be confined to the first part of the speech, which dealt with the form of judgments. This is something on which I have been published recently with a former colleague, Alexander Horne, in the New Law Journal (16 December 2010, Vol 160, p1735). I am relieved to be able to report that the article's conclusions were substantially consistent with Lord Neuberger's speech, and therefore rather than engage in repetition I will simply offer some observations on his Lordship’s points.

There can be no arguing with the overarching goal of clarity, as a sort of CPR 1.1 for judgment writing. Lord Neuberger overstates the case, however, when he says that it is necessary for judgments to be clear not just to lawyers but non-lawyers as well. The fact is that law is a learned profession, just as with, for example, medicine. The only way that a paper on, say, new heart transplant techniques could be rendered intelligible would be if the reader had studied the subject — and was hence no longer a member of “the public” — or if the paper were simplified to the point where it was more or less completely unhelpful to a surgeon. The same goes for a large majority of judgments. For cases of public interest other courts could adopt the Supreme Court’s practice of issuing a separate press release.

I share Lord Neuberger’s concerns about the length of judgments, something which has increased almost inexorably over the past two decades. He is certainly correct about one of the reasons, namely that “in recent years, there has been ... a sustained and justified outcry at the inexorable volume, the tedious length, and the inept drafting of many of the Acts of Parliament that have found their way onto the statute book”. Few areas of law have been immune but the tax system must be a contender for the worst example.

That said, the case for shorter judgments can be overstated. It was once said that first instance judgments should ideally be “brief courteous and wrong”, which wasn’t to say that appellate judgments should be “long-winded, rude and right”, though there are many examples of both. Much depends on whether a case raises a point of general importance: if so, some general guidance will be appropriate and expected, as Lord Neuberger states at para 15.

Another problematic aspect is the desire of the court to do justice in the individual case, but at the same time in accordance with the law. Sometimes the twain simply will never meet, however much intellectual agility the judge deploys. Lord Neuberger’s warning here is sound: endless exceptions to general principles in order to engineer what a judge regards as a fair outcome leads to complexity and confusion, which in turn generates future injustice of its own. As he says, if hard cases make bad law, it is equally true that bad law makes hard cases. But the subject of legal reasoning is one filling many textbooks and no further elaboration will be attempted here.

Lord Neuberger’s conclusion is that some form of training in judgment writing would be appropriate. It is a suggestion that would have offended some of his predecessors (and perhaps a few of his contemporaries), but, as he points out, barristers all go through extensive advocacy training, and advocacy is just as case-specific and individualistic as judgment writing.

I do not think that there is any need to follow the practice of the European Court of Justice or the European Court of Human Rights in having a uniform structure for judgments, but at the same time Lord Neuberger is surely correct that it would be a useful exercise for the Judicial Studies Board to define some fundamental principles of good judgments.

One is the need clearly to separate holdings that are fact-specific, those which the judge considers of general application and those which are obiter. Another is condensing facts to an appropriate degree (see Jones v Jones [2011] All ER (D) 231 (Jan) for an unfortunate example of a first instance judge going wrong in this respect). Often this will depend on the judge’s experience – or that of counsel – in the applicable area of law, but not always. A third factor is the aforementioned issue of multiple appellate judgments (on which see the NLJ article, supra).

Any aspiring judge looking for guidance on how to write a judgment could learn from studying examples of Lord Brown’s incisiveness, the clarity of Lord Hoffmann, or, going back a generation, the ability of Lords Reid, Diplock or Wilberforce to issue clear and practical general guidance.

Civil partnerships and the law

2011-03-15T17:13:00.004Z

Published on Halsbury's Law Exchange here.

The question of religion and the law marches on. Yet another example concerns impending changes to the Civil Partnership Act 2004. These are intended to enable the registration of civil partnerships to take place on religious premises. More detail of the incoming law and its implications can be found on this post on the UK Human Rights Blog.

There are at least three competing rights: first, the property rights of the owner of any premises on which ceremonies are conducted; second, the right of sexual equality for prospective couples; and third, the right of religious freedom for all. The proprietor may wish to allow or exclude different forms of ceremonies according to his or her beliefs; couples of any description will not expect to be turned away on the ground of their religious beliefs or their sexuality or gender; and religious bodies will wish to sanction their own ceremonies in accordance with their own beliefs and not otherwise.

First one may consider the proprietor. By choosing to offer services to the public he or she must do so within the framework of the law of the land, including equality laws. That was the point which precluded the Christian B&B owners in other well-known proceedings from arguing that they should be permitted to exclude guests on the ground that the B&B was also their home. Equally, if the state licenses an activity such as the provision of marriage ceremony services then it will do so under the applicable equality laws.

Accordingly, the second right would ‘trump’ the first in so far as the proprietor could be said to be dealing with the public. If on the other hand he was holding a private function he could invite whomsoever he pleased and the second right would not be engaged.

Assume, though, that the provision of marriage services is a service to the public, as with opening a restaurant or running a hotel. Then, one meets the objection that a religious organisation wishing to hold only its own ceremonies should be entitled to do just that, and all the more so when it is being held on its own premises too. If the state is to wield the full force of the equality laws, and decide that no discrimination in the provision of marriage services is permissible, then freedom of religion is in for a thin time.

Under the 2004 Act, however, no religious organisation is to be forced to do anything in this regard. Nor is there any prospect of Strasbourg compelling a change: the European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria ((Schalk and Kopf v Austria (App. No. 30141/04)). All that is in the offing is that religious institutions will no longer be prevented from holding civil partnerships, which on any view is an expansion of everyone’s freedom. What is not on the cards is the ability of any prospective couple to compel an institution to register their partnership, by arguing that a refusal constitutes unlawful discrimination.

Nevertheless, one cannot rule out the prospect of future change. Perhaps a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved, since the ceremony would be akin to a private party or religious observance - no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets.

There remains a residual point concerning the word “marriage”, which in law is still confined to male and female unions. I leave it to readers to decide if the principles I have set out above require a change. I would however note three things. First, if there is no actual difference in the legal status of marriage and civil partnerships, being unable to use the term in official documents is of no actual consequence. Secondly, it may be that over time opposition to merging the terms will fade in any event, as have so many formerly hotly contested equality issues. Thirdly, any change ought to come from a free vote in the House of Commons, not through the courts.

Religion and equality

2011-03-14T13:51:00.000Z

Published on Halsbury's Law Exchange here.

Lord Denning once wrote “Without religion there is no morality, and without morality there is no law.” It is safe to say that today’s judiciary would not likely agree.

On 10 March Paul Diamond, the barrister who has appeared in a number of recent cases on the issue, appeared with Lord Falkner QC on Radio 4. Mr Diamond argued that recent cases showed the courts trumping the right of religious freedom with the right of sexual equality. He said that religion was a “core” human right which should not be suppressed by “enforced morality”.

Immediately he was forced to concede that there were limits to freedom of religion, such as recognising polygamy (I interpolate that it is not clearly justifiable to ban polygamy where it involves consenting adults), or if some zealot tried to prevent a female child from being educated.

Mr Diamond argued nevertheless that there were far too many restrictions in Britain at present, and that Parliament needed to step in to correct wayward judges.

The answer to Mr Diamond’s concerns is that one is entitled to respect for one’s beliefs – but not respect for those beliefs themselves. Or, to put it another way, one can practice any religion, but not demand that the taxpayer fund that practice, or that employers grant exemptions from duties or requirements on religious grounds (unless the employer and employee freely agree), or that schools grant exemptions from uniform policies or class attendance. Most certainly one cannot expect on religious grounds a different application of the criminal law (see Criminal Law & Justice Weekly, 2011, Vol 175, p 124).

Thus Mr Diamond railed against the British Airways’ ban on a member of staff wearing a crucifix, without acknowledging that the airline had the right to set its own uniform requirements. If one disagreed with the rules, one shouldn’t accept employment there. The only time the state should interfere with the airline’s policy would be if the airline was requiring indecent clothing, or clothing with racially offensive slogans on them, or some other such extreme and improbable example. This would avoid arguments over which symbols are religious as opposed to cultural or anything else, and whether one religion was receiving favourable treatment. Having said that, it does seem unfair that the airline permitted other religious symbols but not the crucifix, and it can hardly be said that the crucifix was likely to have offended any passengers and thereby damaged the airline’s business.

The same goes for the protection of religious – or any other – belief system in the context of employment. Presently the law on that issue is needlessly complex. Instead the law should provide that employees can only be hired, fired, promoted or disciplined according to conduct relevant to their employment.

Ordinarily relevant conduct would not include religious beliefs or many other belief systems. For example, the religious or political or scientific beliefs of a tax accountant would usually bear no relation to her employment, so any adverse treatment resulting from those beliefs would be unfair and potentially actionable. On the other hand, if she were suddenly persuaded after reading a political tract that all taxation was theft, and therefore it was a moral duty not to pay any, dismissal on the ground of her beliefs might well be justifiable. It would also be reasonable for a religious organisation hiring someone to give sermons to inquire into their beliefs ... All too often the present law seems to comprise the usual English method of overly complex regulation with overly complex exemptions, rather than application of principle.

The liberal approach advocated above would be the answer to another case in the news this week, namely the claim of a hunt saboteur that his anti-hunting beliefs should be protected from discrimination in the same way as religion. If he had been employed as a Master of Foxhounds then his beliefs would be relevant to his employment, and his employer could hardly be expected to permit him not to carry out any lawful duties because of his beliefs. If they were not relevant then the employer would be acting unreasonably and unlawfully by taking his views into account in hiring or dismissing him. There is no need for law makers to get bogged down in trying to define “religion”, and what secular philosophies or values deserve equivalent status to religious beliefs.

Of course there inevitably remain grey areas, and the question of whether a local authority should consider the views of prospective foster parents is a good example, though in this respect Mr Diamond went too far in his claimed consequences of the recent case on point. All that was established in that decision was that the authority was entitled to take parents’ views into account, though save in the most extreme cases it should be of little or no relevance.

The Reduced Law Dictionary, by Roderick Ramage

2011-03-14T08:27:00.001Z

Published in the New Law Journal, vol 161, 11 March 2011, p 366

Readers of this journal have long been entertained by the “snippets” column, consisting of anecdotes and observations, each one exactly 101 words long, which one finds scattered across the pages from time to time. The author of these pieces is Mr Roderick Ramage.

Someone obviously jabbed Mr Ramage in the ribs recently and told him that he ought to compile a few of them into a book, for that is what he has now done. Naturally he has selected 101 of them. The reason for the fixation with the number 101 is explained at the start of the book, which I will leave readers to learn for themselves. He has given the collection the rather fetching title The Reduced Law Dictionary.

For some but not all of the snippets Mr Ramage has details of the sources at the back of the book. Most of his cited cases come with references too. The snippets themselves are drawn from a very wide range of subject areas, and form an entirely random collection accordingly. Some are succinct points of law, some rather jejune, some amuse, while others give cause for regret. For example, no. 43 tells us that an attempt was made by Parliament back in the 1930s to do something about the grey squirrel invasion, an effort which we can now say with hindsight was, sadly, largely futile. We also learn in no. 38 about elephant farming in Scotland ...

Other scattered historical gems include the "brickbat" of Norman French (Mr Ramage prefers "dog French") of no. 49, and an explanation of "deed poll" in no. 48.

Then there are the outright controversial. Number 92 rails against “Tesco Law”, the opening up of legal services to a much wider range of potential suppliers, including the eponymous supermarket chain. Mr Ramage thinks any such supplier will pay lip service to traditional professional standards but insists that “in reality ... directors will continue to perform their company law duty to maximise profits.”

Well in reality they probably will, but another feature of reality is that even in traditional firms nowadays Mr Ramage will find fewer colleagues suffused with the tradition of service than in his youth, and rather more that are suffused with the modern tradition of making money. The steady trail of downfallen greedy solicitors through the Solicitors’ Disciplinary Tribunal each year confirms as much. But Mr Ramage is right to draw attention to how the Solicitors’ Code of Conduct will be reconciled with directors’ duties that do not apply to a traditional solicitors’ partnership.

Rather more inflammatory is no. 82, where Mr Ramage tells us that attacks on the Archbishop of Canterbury’s well-known speech about some adoption of Sharia law being “inevitable” was all a misunderstanding; that the Archbishop was only advocating some private law arrangements which might be recognised along with other arbitration agreements.

In fact that was the one thing the Archbishop and his apologists conspicuously failed to understand, particularly when making the inapposite comparison with the Beth Din. It is a fundamental feature of the common law principle of freedom of contract that parties may resolve disputes in a method of their choosing – and if they choose a foreign system of law, recognition of the outcome involves no “accommodation” of that system within English law, still less a “parallel system”. Indeed, in the case of Jewish law procedures, they are expressly stated to be subject to the law of the land. The Archbishop would have done well also to have acknowledged the possibility of private forms of dispute resolution falling foul of English public policy and being unenforceable accordingly.

None of this, however, is necessarily a bad thing in the context of the book, which isn’t purporting to be a political tract or a serious legal textbook but rather an amusing potpourri, or an olla podrida as Francis Bennion used to call his column in Criminal Law & Justice Weekly. In that respect firing off provocative remarks here and there adds to the interest – as evidenced by the fact that I have just found rather more than 202 words to say about the 202 words of no’s 82 and 92.

Mr Ramage says that he started compiling the snippets as a means of light relief from his day job (he is a solicitor). He can take extra satisfaction from the fact that through the original column and now this book he has often provided light relief for the rest of us as well.

Foster care and religion: the legal debate

2011-03-03T13:18:00.000Z

Published on Halsbury's Law Exchange here.

In a previous post I considered the case of a Christian couple whose views on homosexuality rendered them unsuitable in the eyes of their local authority to foster children. This week a different couple were also unsuccessful in seeking to challenge their local authority on the same issue (R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) [2011] All ER (D) 292 (Feb)), and predictably the same strident debate in the media has followed.

The judges held that there was a need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty did not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child's parents and the wider family, any of whom might be homosexual. In those circumstances, it was impossible to maintain that a local authority was not entitled to consider prospective foster carers’ views on sexuality, least of all when it was apparent that the views held and expressed might well affect their behaviour as foster carers. The authority was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them.

I am a firm advocate of both sexual equality and a complete separation of Church and state, and sympathise with the authority's view accordingly. But the situation is quite complex.

The first question - not considered anywhere in the judgment or much in the literature - is whether or not the same test should apply for placing children with foster parents as for removing children from their original parents.

If the test were to be the same, then it would have to be far less intrusive than the current foster parent investigation, unless we were prepared to have the Orwellian spectre of local authorities investigating all parents and interrogating them regularly as to every aspect of their social and political views.

Given, therefore, that it is an unavoidable fact that there are millions of religious parents and they are not being deemed ipso facto unsuitable, it might be asked why the authority should concern itself with the religious beliefs of prospective foster parents. On the other hand, placing any children, still less ethnic minority children, with devout adherents of the former Dutch Reform Church would be unreasonable to say the least, as would be the case if the parents were open admirers of Osama Bin Laden who expressed the desire to swell the ranks of martyrs. One could imagine many others.

It does not therefore seem right to allow carte blanche foster placement with no investigation of the views of prospective parents.

What, therefore, should that investigation entail? Rosalind English in the UK Human Rights Blog considers that religion by definition requires a narrow minded approach to matters such as sexual orientation, blasphemy, the status of women and so on, and therefore the chances of any admitted religious adherent passing the authority's muster must be slim. They will therefore have to lie about their beliefs or not bother.

That may now be the law, but despite agreeing with Ms English that a religion almost by definition must require adherence to its own tenets and some (at least implicit) denigration of non-believers or other deviants (though not necessarily for all religions - and indeed one further point is how to define a religion), I am not persuaded that this should indeed be the law.

I return to the previous post, in which I argued that given we still (fortunately) have freedom of religion and freedom of thought, a wide mesh for tolerable views should be applied. After all, a child has to be educated in the state run or state-approved school system and it is idle to assume that children will not encounter all manner of views, good, bad, arguable and indifferent in all aspects of their life. If that school system does its job properly the children will learn to question, debate and investigate views including those of their parents. Indeed, if the state is concerned about unacceptably narrow views it should question the very concept of religious schools, which in my view are simply not compatible with the goal of a diverse, tolerant society, however excellent their academic results or disciplinary record.

There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.

One final point. A question was raised that the prospective carers in the instant case “would not take a Muslim child in their care to a mosque”. Children should not be considered to have a religion of their own, they should be allowed – and encouraged – to investigate and question all matters of faith and to make their own mind up in due course.

Litigants in person

2011-03-01T15:02:00.000Z

Published on Halsbury's Law Exchange here.

It was once said that justice, like the Ritz, is open to all. That was a variation on the old joke about French law being equal because it prevents the rich as well as the poor from sleeping under bridges. Since the advent of public funding, it has been more common to say that justice is only available to the very rich or the very poor ...

Whatever the truth of any of that, there is no doubt that any restrictions on legal aid (as presently being considered) will have some effect on access to justice. A second consequence, however, is that there are likely to be significantly more litigants in person. According to the BBC:

“The Judges' Council, which is chaired by Lord Igor Judge, the head of the judiciary, has warned that government plans to remove £350m from the legal aid budget could result in a surge of amateur barristers clogging up the system.

The Ministry of Justice (MoJ) insists there is "little substantive evidence" that litigants in person delay proceedings and that any increase should not significantly impact proceedings.”

The MoJ’s insistence deserves a response. The reason there is “little substantive evidence” is that properly researched statistics would be hard to come by. One would need to start by dividing hearings into those with the same cause of action – such as, for example, cases under s 288 of the Town and Country Planning Act 1990, ancillary relief cases, child custody hearings, road traffic prosecutions – and then compare the average length of hearings where both sides, one side or neither were represented. Then one would have to consider the factual and legal complexity of each individual case – which might differ significantly even between different examples of the same cause of action. Next one would have to take account of the different judges involved: some naturally progress cases quicker than others. To an extent that is dependent on the degree of familiarity the judge has with the particular subject matter – few judges could deal as expeditiously with planning cases as Sullivan LJ, for example.

One can therefore see the difficulty in compiling objective statistics simply from the duration of particular hearings. And the absence of such statistics on the subject means that there is equally little substantive evidence both for and against the MoJ’s proposition.

Having said that, however, the Judges’ Council is surely in an authoritative position to make at least a broadly accurate generalisation, given that it is able to draw upon the collective experience of those who actually conduct all the hearings. Its conclusion that hearings involving one unrepresented party almost always take longer than when both are represented is correct in the experience of the All England Law Reporters, who have covered countless hearings in the courts of record involving both represented and unrepresented parties over the years. There are several reasons why.

First, it is generally necessary for the litigant to be assisted with court procedure. Secondly, few have the skill of distilling relevant from irrelevant issues. Thirdly, even highly educated litigants in person are generally quite out of their depth in discussing any relevant authorities, statutes or points of principle, which therefore have to be explained at least to some extent (and even then the full significance is often not grasped). Fourthly, it is the duty of the other side’s barrister to draw all relevant authorities to the court’s attention and identify arguable points which the litigant might have missed, and this usually takes longer as the judge will want to be satisfied that that duty has been discharged. (It may also add to the (often unrecoverable) costs of the other side). Fifthly, judgments often take longer as the judges feel obliged to include more detail, with little homilies explaining points of law which ordinarily would not be necessary.

The Judges' Council's point is therefore sound. The point remains secondary, however, to the fundamental point of justice being done – and equally being seen to be done. If there is a basic inequality between representation of the parties, one is entitled to question whether the standard of the trial process will always be maintained. Law is a learned profession, as with, say, medicine or architecture, and it is idle to expect that a lay person could undertake even a straightforward medical diagnosis or design a simple building as well as a professional. It is equally expecting too much of lay people to assume they can competently represent themselves in court.

Religion and the criminal law: disregarding the faith

2011-02-23T13:42:00.000Z

Published in Criminal Law & Justice Weekly, Vol 175, 26 February 2011, p 124

Without question, religion and the law constitutes one of the most contentious issues in public debate in the present day. Criminal law is no exception, as illustrated by two high profile cases from 2010.

The first was that of Shamso Miah, who punched a member of the public over an argument as to their respective places in a bank queue. The victim suffered a fractured jaw, and Miah subsequently pleaded guilty to assault occasioning actual bodily harm. Miss Cherie Booth QC, sitting as a part-time judge, imposed a sentence of two years’ imprisonment, but proceeded to suspend the sentence on the basis that “[y]ou are a religious man and you know this is not acceptable behaviour.”

Miss Booth’s remarks were widely criticised at the time, and rightly so. They are illogical for a start: the fact that Miah knew his behaviour was wrong evidently did not stop him doing it. If anything, it should have been an aggravating factor, since it demonstrates he was able to assume full responsibility for his actions.

Moreover, belief in the concept of right and wrong is not the preserve of the religious. While the subject does not lend itself to brief summary, it can be observed that many great wrongs have been, and continue to be, committed in the name of religion. It is also true that many have been committed in the name of secular ideologies. The point is that making judgements about the relative merits of secular versus religious ideology or ethics is a philosophical minefield. It is no business of the courts, certainly not in straightforward criminal cases.

In any event, trying to adopt a religious exemption or mitigation for criminal conduct would be unworkable in a multi-faith (and perhaps predominately secular) society such as the United Kingdom. There are too many differing standards amongst too many faiths, never mind trying to define the concept of a religion to begin with.

It is true as a matter of historical observation that the common law and its values have a shared history with Christian ethics, and that the United Kingdom retains an established church. But the days of the common law being actively developed by religion have long passed, and the courts regularly reiterate (correctly) that they are a secular institution.

Judges should not, therefore, make any assumption about the character of defendants based on their apparent religious beliefs, and in the particular case Miah’s should have been of no mitigation or aggravation. The relevant factors were the same as any other defendant: prior convictions or absence thereof, and positive evidence of good or bad conduct.

Of course, good conduct may be motivated by religious belief, but that is neither here nor there. It is the conduct itself, not the informing belief, which constitutes the mitigating factor.

By the same reasoning, the religious beliefs of the victim are equally irrelevant, as should have been recognised in another highly publicised case, namely the attempted murder by Roshanara Choudhry of Stephen Timms MP.

According to the sentencing remarks, Choudhry had been indoctrinated into Islamic extremism, and stabbed Timms out of "revenge" for his having supported the Iraq War. The judge went on to contrast Choudhry's values unfavourably with Timms’ strong Christian values, and when describing the latter lauded the historical relationship between Christianity and the common law.

It was right to observe that Timms was an innocent victim and that Choudhry was acting out of wholly inexcusable motives. Yet the purpose of the sentencing exercise was only to ascertain two things: first, whether the victim contributed towards the offence, and secondly, what other aggravating or mitigating factors applied to the defendant. Having established that Timms did nothing to provoke the attack, his other characteristics should have fallen away. The law does not evaluate the worthiness of criminal victims: an attempted murder is just as objectionable whether the victim is a selfish non-contributor to society or a genial philanthropist.

As to Choudhry, her beliefs were correctly judged to have been of no exculpatory or mitigating value whatsoever. They were, however, a factor in determining future risk – if she had carried out the attack in pursuance of her ideology and had no remorse or regret, then she was presumably likely to do it again.

Occasionally it is suggested that the presence of many faiths in the United Kingdom should be reflected in public institutions and processes. On the contrary, a separation of church and state is the only way that all beliefs (including non-beliefs) can be treated the same. This poses no threat to the survival of religion – quite the opposite. It ensures that no particular faith gains the favour of the state. And in the context of the criminal law it ensures that everyone is protected – and prosecuted – equally.

R v Chaytor: expensive claims

2011-02-02T17:34:00.001Z

Published in Criminal Law and Justice Weekly, vol 175, 5 February 2011, p 73

On 7 January, Mr David Chaytor became the first MP to be sentenced in relation to an offence committed in respect of parliamentary expenses. His guilty plea followed a preliminary ruling by the Supreme Court that the system of expenses did not attract parliamentary privilege (as established by art 9 of the Bill of Rights 1689), nor did Parliament itself have exclusive jurisdiction over the issue. The case is noteworthy, if primarily because of the high degree of public interest rather than any new legal principle.

Of the courts involved, it was the Court of Appeal who most invoked the spirit of Denning at the constitutional pulpit. It stated that parliamentary privilege was the “bedrock of our democracy”, and that the finest example of the principle in action was Leo Amery’s speech in the Commons in 1940. Following the severe military reverses of that year, Amery launched a direct attack on the incumbent Prime Minister, Neville Chamberlain, concluding with Cromwell's famous exhortation "in the name of God, go".

I would certainly agree with the Court of Appeal about the significance of Amery's speech. Had he made the same speech in most other countries, not to say Hitler's Reichstag, they would have been about the last words he ever spoke.

There was, incidentally, a tragic irony from Amery's personal point of view, as his elder son Jack went on to make pro-German broadcasts from Berlin on a similar line to those of William Joyce, whom I wrote about at vol 174, p 249. As with Joyce, he was executed for treason after the war. He also recommended PG Wodehouse to the Abwehr, which has led to some casting much harsher aspersions upon Wodehouse than I did in these pages (see vol 174, p 791).

Back to the Chaytor case. On appeal the Supreme Court reiterated the importance of art 9, perhaps with fewer rhetorical flourishes but with no lesser emphasis.

There is accordingly no doubting the importance of Parliament being a forum where everything is up for the most robust debate, even if outside the House it might carry legal consequences in libel or worse. To the extent that MPs might abuse that privilege, it is a matter for the House itself to control—usually in the form of the Speaker—with no recourse to the courts.

Moreover, parliamentary business extends beyond simply what is said in either House, and other activities may therefore attract the privilege defence. As Lord Phillips stated, the test is whether impugned actions fall within “parliamentary proceedings” because of their connection to the Houses and their committees, which in turn concerns the nature of that connection and any impact of a prosecution on the essential business of Parliament.

He went on to hold that expense claims failed that test and therefore did not attract privilege.

The second limb of the defence was based on the slightly archaic sounding “exclusive cognisance” of Parliament; in other words, whether Parliament alone had jurisdiction to deal with its own affairs.

As with art 9 the boundaries of the defence are imprecise, but Lord Phillips was clear that “the mere fact that a crime has been committed within these precincts [of Parliament] is no bar to the jurisdiction of the criminal courts”, and that Parliament itself had never challenged that proposition. Further, although a prosecution would ordinarily require the co-operation of Parliament, that was not essential.

Accordingly, the trial of Chaytor and the other defendants was allowed to continue. Of course that was the only acceptable result. Either the MPs took more than they were entitled to or they did not. It was crucial for that question to be decided in the ordinary courts, with the same rights and same procedures to which anyone else would be entitled. Nothing less would suffice for justice to be seen to be done, and for public confidence in the institution of Parliament to be restored. As Denning himself once put it (quoting Thomas Fuller):

“Be you never so high, the law is above you” (Gouriet v Union of Postal Workers [1977] 1 All ER 696 at 718).

That said, any wider constitutional significance of the case can be downplayed. Contrary to some published opinion, it says nothing about the relationship of the Supreme Court and Parliament. The Appellate Committee of the House of Lords would certainly have reached the same conclusion (as had the lower courts already), and moreover the actual trials will not take place in the Supreme Court itself but rather the Crown Court.

One final point. The last word on the affair will not be the preserve of the criminal courts, but rather the court of public opinion. MPs and everyone else involved in the system would do well to act accordingly.

Negative returns: Mrs Gillick and the DHSS

2011-02-01T16:24:00.003Z

Published in the New Law Journal, vol 161, 4 February 2011, p 178.

On my first day as an aspiring litigator, a partner gave some advice: litigation always goes wrong. Perhaps there was some exaggeration, but it was a sound enough warning. After all, at least half of all litigants would probably agree.

Most often the negative consequences of losing a case are simply financial, but for others rather worse may come of it. Oscar Wilde sued the Marquess of Queensbury; not only did he lose, but he received a criminal prosecution for his trouble. A more tolerant age did not help Lord Browne of Madingley, who wanted to keep his former relationship’s details quiet. He started by insisting that deference be paid to his status as the senior businessman in the land and a peer of the realm - in contradistinction, he argued, to the lowly status of his erstwhile partner and the Sunday papers who wished to publish the story. He finished by being exposed as a liar and losing his business positions into the bargain, all for the sake of the most trivial and irrelevant personal details. Jonathan Aitken, meanwhile, fell on his own sword (of truth ...).

Perhaps, however, the most ironically self-destructive consequence of a failed case is when the unsuccessful litigant's name becomes immortalised as legal shorthand for the very thing he or she tried to prevent. One unfortunate Mr Scott, in the midst of the prudish Edwardian age, took exception to his wife highlighting his marital inadequacies, and sought to have any such evidence heard in private. The point was ultimately decided by the House of Lords against him, in what remains the leading authority on open justice today (Scott v Scott [1911-13] All ER Rep 1).

Suffering a similar fate in more recent times was Mrs Victoria Gillick. In 1980, the-then Department of Health and Social Security issued a policy which would have enabled children under the age of 16 to receive contraceptive advice and treatment without their parents’ knowledge, much less permission. Mrs Gillick, the mother of ten children including five daughters, was not having that. She brought proceedings seeking a declaration that the policy was unlawful. Famously, her case failed before the House of Lords. She was then left with having established a new principle regarding the circumstances in which children might consent to treatment without parental permission, known to the present day as "Gillick-competence".

As with many other legal tales it could all have turned out rather differently. The law lords’ decision was given by a majority of one. They held that while it would be unusual for a doctor to give the advice to a child under 16 without the consent of her parents, the parent’s right to decide effectively ended once the child had achieved sufficient understanding and intelligence to understand fully what was proposed.

That was a significant development from the previous doctrine, under which the concept of parental rights and control had ruled the roost.

Almost immediately the question arose as to whether the child’s right to accept treatment also carried with it the right to refuse treatment; the Court of Appeal in subsequent cases did not think so. It remains an interesting moral conundrum: should a child competent to understand treatment be dragged into an operating theatre against her wishes? A similar logical point arises with assisted suicide: if a person has the right to refuse to take a drug even if the consequences will be almost immediately fatal, do they also have the right to accept “treatment” in the form of a fatal drug?

The lasting significance of Gillick has been the shift from parental rights to the overarching principle of the “best interests of the child”. That was reflected in the Children Act 1989 and the accompanying Family Proceedings Rules 1991. One practical consequence has been the increased opportunity for children to participate in legal proceedings. In general it may now be said that once a child has developed a certain level of intelligence and maturity, the parents’ decision-making rights fall away, or at least are greatly diminished (see Janet Bazley QC and Stephen Jarmain “Gillick and the dwindling right of parental authority” in Cases that Changed Our Lives, LexisNexis 2010).

Mrs Gillick would not have been amused. Today she might be considered somewhat old fashioned, certainly in her view of sexual morality. Opinion columns confirm that the merits of that change in public morals remain as disputed as ever.

But Mrs Gillick was also old fashioned in another respect: she held principles that went beyond her immediate personal gratification, and was prepared to stand up when she saw public injustice. Perhaps most readers might bemoan the diminishing of that ethos, even if we may differ from Mrs Gillick over what in fact constitutes public injustice.

Pastor Terry Jones' proposed visit to the UK

2011-01-20T22:44:00.000Z

I don't have time to write a full piece for HLE or anywhere else at the moment, so have commented under the UK Human Rights Blog's entry on the subject instead.

Climate protests

2011-01-20T21:10:00.000Z

Short piece for Halsbury's Law Exchange, published here. I might write a longer version for CL&J for later this year.

Environmental protests have received many headlines recently, with trespass and criminal damage being committed at a number of power stations in an attempt to interrupt their operation or shut them down altogether.

The protestors have often sought to argue that they were acting to prevent the greater wrong of the carbon emissions of the stations in question. Surprisingly, on at least one occasion (the Kingsnorth protestors in Kent) this argument has earned them an acquittal. Perhaps equally surprisingly some lawyers have written in support of this (see eg this entry on the respected UK Human Rights Blog) as well as making other radical suggestions such as expanding the law of tort to include the whole planet as a ‘neighbour’ and so on.

Two points should be made in response. First, as to the protestors, in a country with freedom of speech, freedom of association, a wide scope for lawful protest and, most of all, the ballot box, unlawful resistance can rarely be justified.

Secondly, it is laudable that lawyers follow and wish to act on environmental concerns. It should be obvious, though, that issues such as whether or not any particular power station should continue in operation need to be decided as part of the national energy policy. Formulating that policy involves highly complex questions requiring primarily engineering, chemical, economic and physical science expertise – how much power is needed, how much it is possible to generate and by what means, how much each option will cost, and what environmental effects will follow. To be blunt, lawyers and judges are not particularly qualified to answer any of those questions – any more than scientists and economists are best placed to determine technical legal points.

Witchcraft during Wartime: the trial of Helen Duncan

2011-01-11T22:54:00.002Z

Published in Criminal Law & Justice Weekly, (2011) Vol 175, No. 03, p 27.

In earlier columns I have written about wartime cases to reflect on present-day problems. Such cases are often the most instructive, because it is during wartime that a legal system is under the greatest strain, and how it reacts to that strain says a great deal about the system. Previously I have considered cases where the law reached the right conclusion. This month, however, I am concerned with a case which should never have been brought at all: that of Helen Duncan, often (incorrectly) said to be the last person in Britain to be tried for witchcraft.

Duncan held herself out to be a spiritual medium. She received minor convictions for fraudulent activities relating to her "trade" before the Second World War, but acquired lasting fame during the conflict by telling one anguished person during a séance that her son’s ship, HMS Barham, had been sunk.

News of this revelation caused alarm in Whitehall. The Barham had indeed been lost, but the Navy had suppressed the information. The reason was that intelligence had revealed that the Germans did not know about the sinking, since the U-Boat commander responsible had been unsure. Several other capital ships had been lost around the same time, and news of the Barham’s loss would have been a severe blow to morale as well as a German propaganda victory. Fearing that Duncan had access to its secrets, therefore, the state decided to put her out of business.

After some impressive pre-internet legal research by the prosecution, Duncan was charged under s 4 of the Witchcraft Act 1735, concerning “fraudulent spiritual activity” (rather than witchcraft per se). The trial that followed veered towards farce, with a number of apparently respectable people prepared to testify that her powers were genuine, but with the judge prohibiting Duncan herself from “proving” her abilities in court. She was eventually convicted by a jury and imprisoned for nine months.

After the trial Churchill lambasted the case as “tomfoolery”, and it is hard to disagree. It seems absurd that the authorities thought Duncan either a genuine medium or privy to state secrets: the fact that she guessed that a ship during wartime had been sunk hardly constitutes proof of anything.

If Duncan had indeed improperly obtained state secrets, she should have been charged on those grounds accordingly. If that was the true reason for the trial, however, but the prosecution chose instead to prosecute her under the Witchcraft Act for its own convenience, then that looks like a misuse of the legal system.

The most persuasive ground for the law’s intervention was that Duncan was exploiting the vulnerable, and that argument of course applies to all others in her vocation. There is clearly some justification for the state prosecuting charlatans. Then again, if people derive comfort from falsity, why should others object? In a free society, if competent adults wish to pay for such “services” they should have the right to do so, both as an exercise of the right to freedom of contract and the right to freedom of religion.

On the other hand, trading standards usually require that vendors do not offer for sale something they know to be false, particularly when the prospective purchaser is likely to be vulnerable.

In the absence of blatant trickery, however, the question of proof in either direction is an interesting one; after all, a good many intelligent people seem to want to believe in the Loch Ness monster, and it is not as if the veracity of mainstream religion is any more open to scientific proof. In all seriousness, the state is generally best leaving such things to the marketplace of ideas.

At most, spiritual mediums and similar types should be the concern of trading standards rather than the criminal law. There may come a point where coercion or deception merits criminal proceedings, but existing laws against intimidation or fraud should suffice in those cases. Otherwise, commercial regulation rather than specific criminal offences should be the extent of the law’s intervention, the aim being to restrict misleading advertising or otherwise protect the vulnerable rather than shut down the business altogether.

The justification is that the state should adhere strictly to the separation of church and state. On the one hand, the state should not seek to outlaw peddlers of religion and spiritualism. On the other hand no funding or official sanction should be given for spiritual or religious activities, “mainstream” or otherwise. Rather, the state should concentrate on education, surely the consumers’ best weapon against snake oil salesmen of any kind.

Coda: Recently, supporters of Duncan campaigned to have her pardoned. They were unsuccessful, though their website seeks to assure everyone that Duncan's powers were genuine. Readers can judge that one for themselves.

Court tweets

2010-12-20T12:47:00.001Z

A post for Halsbury's Law Exchange, published here

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

"... it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done."

Inevitably modern technology has given rise to new issues regarding the scope and application of the principle. Courts have yet to allow television broadcasting, photographing or electronic recording of proceedings; now they must deal with mobile communication devices and the internet, and in particular social networking sites such as Twitter and Facebook.

One suspects that the genie is out of the bottle, and it will therefore be a case of managing the developing technology rather than pretending it does not exist or seeking to exclude it in toto. To that end, the Lord Chief Justice has this morning issued interim guidelines on the use of electronic communications from court. They provide, among other things, that:

subject to the necessary precondition that its use does not pose a danger of interference to the proper administration of justice in the individual case, the use of an “unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice”.
an application (formally or otherwise) can now be made by an individual in court to activate an electronic device (phone, laptop or similar). The judge will consider the above precondition and then other factors such as the danger of inadmissible evidence being reported, or pressure on witnesses.

As mentioned these are interim guidelines, and many more considerations will no doubt come into play in practice. These will include the possibility of anonymous and untraceable publication and indeed publication beyond the reach of national law.

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

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

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

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

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

Judgment Matters

2010-12-16T17:26:00.000Z

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

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

Appellate judgments serve two primary purposes:

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

(ii) to clarify the law.

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

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

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

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

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

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

Citation matters

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

Plurality judgments

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

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

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

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

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

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

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

Diversity

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

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

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

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

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

A model example

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

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

Postscript:

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

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

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

A Lord but not a Peer

2010-12-13T15:10:00.004Z

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

This morning the Supreme Court made the following announcement:

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

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

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

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

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

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

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

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

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

2010-12-10T10:33:00.006Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2010-11-25T15:16:00.001Z

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.

One alleged attempt forms the background to one of the most famous cases in English legal history, that of Daniel M’Naghten, whose case has framed the legal test for insanity for over a century and a half. Every lawyer will have heard of the case and most will associate it with the legal test for insanity (see Jeremy Dein QC and Jo Sidhu, “Legal Insanity” in Cases that Changed Our Lives, LexisNexis 2010).

Not so many, however, would know that the factual background to the case involves a rather intriguing conspiracy theory.

For most of his life, in the early to mid-nineteenth century, M’Naghten lived largely anonymously as a wood-turner, although he had a few other interests as well. Among other things, he tried his hand at acting for three years, taught himself French, attended a debating society, travelled to France and attended anatomy classes at Glasgow University – all of which amount to fairly advanced pastimes for a Victorian artisan, one would have thought ... But inevitably much of the detail of his life is rather sketchy.

What we do know is that somewhere amongst those seemingly random activities he formed the view that the Tories had it in for him. He reported this concern to the police, and alleged that he was being tracked by “Tory spies”.

No one believed a word of it or otherwise paid him much attention at the time, but in January 1843 he took a step towards legal immortality when he shot and killed a civil servant, Edward Drummond. He made his one and only public statement on the affair in the Magistrates’ court the following day, in which he lumped the blame on the Tories for having “entirely destroyed my peace of mind” (a complaint which, fortunately, does not usually suffice to apportion blame for murder).

An improbably large sum of money for the day (£750) was found on him, and this was used to fund a formidable legal defence team, assembled with great speed. At trial the issue was the definition of legal insanity, and the ensuing holding still represents the single most important statement of that definition in English law.

M’Naghten’s name is accordingly still cited in the law reports more than a century and a half later. Yet it has left unresolved the question of the true purpose of his shooting Drummond that day. Why did he have such a large amount of money on him? Where did he get it from, given the generally modestly-lucrative nature of his legitimate occupation?

Most assume that M’Naghten had not intended to kill Drummond at all, but rather the Prime Minister of the day, Sir Robert Peel, and that the money was paid to him to carry out the hit. Perhaps, therefore, the conspiracy runs, M’Naghten wasn’t mad at all, but made up the vague ramblings about delusions in the hope of escaping the gallows (if so it wasn’t much mitigation, as he spent the rest of his life in a lunatic asylum).

As conspiracy theories go it seems plausible enough, at least on the basis that Drummond was hardly an obvious target for a political assassination. He had been a civil servant most of his life, and at the time was personal secretary to Peel. It was while en route from Peel’s house to Downing Street that he was shot by M’Naghten, so it is easy enough to believe M’Naghten thought he was killing Peel himself. After all, this was not the age of television and Peel’s appearance would therefore have been far less well known than that of any modern holder of the office.

Such is the conclusion of no less an authority than the Dictionary of National Biography. Even if one believes M’Naghten aimed at the wrong man, however, we are still left with some difficult and intriguing questions. First, who paid him the money? Someone or some people very wealthy, one assumes.

Secondly, what persuaded such wealthy benefactors to assume that M’Naghten was a suitable assassin? Did he have a proven record in the field that has been lost with time? If not, and indeed if he truly was insane, then he wasn’t much of a choice.

Thirdly, was the £750 paid in full and final settlement of M’Naghten’s services to be rendered? If so, then the backer(s) had to have been pretty confident that he was going to do as he agreed rather than scarper – and indeed that he would succeed in doing it.

Well, who knows. It is hardly the only famous Victorian murder mystery to remain unsolved, and indeed insoluble.

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

2010-11-23T16:26:00.001Z

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

2010-11-23T16:18:00.001Z

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.

Magna Carta and the European Convention on Human Rights

2010-11-15T16:53:00.002Z

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.