I have been published in the current edition of Criminal Law & Justice Weekly, vol 177, February 16 2013, p 105 on the proposed Alan Turing pardon.
I am also published in the New Law Journal, vol 163, 22 February 2013, p 214, on the Parker-Hulme murder on which the film Heavenly Creatures was based.
Showing posts with label Criminal Law and Justice Weekly. Show all posts
Showing posts with label Criminal Law and Justice Weekly. Show all posts
Friday, 22 February 2013
Friday, 19 October 2012
MPs expenses
The issue of MPs’ expenses is back in the news. It seems that MPs have experienced much and learned little: the system is still being used as a cash cow, and they are still trying to keep the whole thing quiet.
According to the Telegraph:
The Independent Parliamentary Standards Authority (Ipsa) reversed its decision to publish information about MPs’ landlords today, after the Speaker of the House of Commons ordered the regulator to keep the information private for “security” reasons.
It is feared that several MPs may be exploiting a loophole in the rules that allows politicians to rent their homes to one another.
This means that MPs can still effectively build up property nest eggs at taxpayers’ expense, despite official attempts to stop the practice following the expenses scandal.
More details have followed since.
Both the amount of money MPs are paid and the method of payment – salary, bonus, expenses – are essentially political questions. They are however of legal interest in two respects. The first is the obvious question of whether expense claims are lawful; that is to say, whether they are within the rules. Various extremely high profile criminal prosecutions were made under the old regime, following determination of the prior question whether the courts or Parliament itself had jurisdiction over the matter. I wrote about this for Criminal Law & Justice Weekly (vol 175, 5 February 2011, p 73).
The second question is the rather more general point about the wrong approach to making law. In my forthcoming book (details on the sidebar in this blog) I have written about R v Chaytor and suggested something on the following lines:
The fundamental flaw is that any system which operates by people making claims and then hoping to get them approved, but with no restriction on the amount that might be claimed or penalty for having a number of claims refused, gives every encouragement to people to keep on shoving in claim after claim for anything and everything. Any rational, profit-maximising individual would do nothing else.
There are many alternatives. For example, MPs could simply have a fixed sum added to their salaries, to be spent on support staff, travelling expenses or whatever, but no more. Then – in sharp contrast with the present system – they would have every incentive to economise.
All the talk in the original controversy about needing second homes and travel expenses was predicated on the assumption that MPs actually needed to be in any particular physical place at any particular time. In the age of smartphones, videoconferencing and unlimited broadband access, however, that assumption is very hard to justify.
However, let us assume that it is indeed desirable for MPs to be physically present in the Houses of Parliament. Let us also assume that it would be unfair for MPs outside the M25 to be saddled with the extra costs of travelling to and staying in London. Then, one could build a hall of residence for those MPs (with a grander name if one prefers). It could be a modern, furnished and serviced apartment block next to the Palace of Westminster. It would cost a tiny fraction of the amount spent on second homes, the security costs would be far lower as there would only be one building to protect, and MPs would have no more and no less than they needed.
No doubt MPs would feel demeaned by this. But they might consider that a number of large city law firms have dormitories on their premises, together with a few ancillary services such as a canteen and laundry service. These are provided for partners working overtime on large deals. If the apartment block was within walking distance from the Houses of Parliament, (perhaps with an underground tunnel to reduce security costs and provide disabled access) it would slash travelling expenses as well.
This would go a long way towards restoring public confidence in MPs and Parliament generally. One fears though that a majority of MPs will still prefer to play the property market at the taxpayer’s expense and either withhold details from the public or take the loss of popularity on the chin.
Unless the above suggestion or a similarly radical reform is instigated, public confidence in Parliament will continue to be threatened. Needless to say, it is not only lawyers who should be concerned by that.
According to the Telegraph:
The Independent Parliamentary Standards Authority (Ipsa) reversed its decision to publish information about MPs’ landlords today, after the Speaker of the House of Commons ordered the regulator to keep the information private for “security” reasons.
It is feared that several MPs may be exploiting a loophole in the rules that allows politicians to rent their homes to one another.
This means that MPs can still effectively build up property nest eggs at taxpayers’ expense, despite official attempts to stop the practice following the expenses scandal.
More details have followed since.
Both the amount of money MPs are paid and the method of payment – salary, bonus, expenses – are essentially political questions. They are however of legal interest in two respects. The first is the obvious question of whether expense claims are lawful; that is to say, whether they are within the rules. Various extremely high profile criminal prosecutions were made under the old regime, following determination of the prior question whether the courts or Parliament itself had jurisdiction over the matter. I wrote about this for Criminal Law & Justice Weekly (vol 175, 5 February 2011, p 73).
The second question is the rather more general point about the wrong approach to making law. In my forthcoming book (details on the sidebar in this blog) I have written about R v Chaytor and suggested something on the following lines:
The fundamental flaw is that any system which operates by people making claims and then hoping to get them approved, but with no restriction on the amount that might be claimed or penalty for having a number of claims refused, gives every encouragement to people to keep on shoving in claim after claim for anything and everything. Any rational, profit-maximising individual would do nothing else.
There are many alternatives. For example, MPs could simply have a fixed sum added to their salaries, to be spent on support staff, travelling expenses or whatever, but no more. Then – in sharp contrast with the present system – they would have every incentive to economise.
All the talk in the original controversy about needing second homes and travel expenses was predicated on the assumption that MPs actually needed to be in any particular physical place at any particular time. In the age of smartphones, videoconferencing and unlimited broadband access, however, that assumption is very hard to justify.
However, let us assume that it is indeed desirable for MPs to be physically present in the Houses of Parliament. Let us also assume that it would be unfair for MPs outside the M25 to be saddled with the extra costs of travelling to and staying in London. Then, one could build a hall of residence for those MPs (with a grander name if one prefers). It could be a modern, furnished and serviced apartment block next to the Palace of Westminster. It would cost a tiny fraction of the amount spent on second homes, the security costs would be far lower as there would only be one building to protect, and MPs would have no more and no less than they needed.
No doubt MPs would feel demeaned by this. But they might consider that a number of large city law firms have dormitories on their premises, together with a few ancillary services such as a canteen and laundry service. These are provided for partners working overtime on large deals. If the apartment block was within walking distance from the Houses of Parliament, (perhaps with an underground tunnel to reduce security costs and provide disabled access) it would slash travelling expenses as well.
This would go a long way towards restoring public confidence in MPs and Parliament generally. One fears though that a majority of MPs will still prefer to play the property market at the taxpayer’s expense and either withhold details from the public or take the loss of popularity on the chin.
Unless the above suggestion or a similarly radical reform is instigated, public confidence in Parliament will continue to be threatened. Needless to say, it is not only lawyers who should be concerned by that.
Sunday, 30 September 2012
Bad Law and the CPS Part II: the Simon Walsh "extreme porn" trial
The second part of my article on bad law and the CPS comes out tomorrow in Criminal Law and Justice Weekly. It concerns the "extreme porn trial" of the barrister Simon Walsh, who was acquitted of charges arising out of electronic images Mr Walsh possessed. Contrary to the Chambers twitter trial considered in Part I of the article, I have concluded that the CPS was not entirely to blame. If there was a prima facie case that Mr Walsh had committed an offence, then he would have to be charged unless he passed the very stringent test of public interest being against a prosecution. It is not for the CPS to rewrite the law - Parliament has to do so, and until it does we will be stuck with people being prosecuted when they should not be, as with Mr Walsh. The jury system is the only hope in the meantime, and fortunately the jury worked in Mr Walsh's case.
A link to the online article (subscription only) is here.
A link to the online article (subscription only) is here.
Tuesday, 25 September 2012
Bad law and the CPS Part I: the Paul Chambers Twitter Trial
In a two-part article for Criminal Law & Justice Weekly, I have looked at the position of the Crown Prosecution Service (CPS) in two recent high profile cases. The first concerns the “twitter trial” of Paul Chambers. The second looks at the trial of the barrister Simon Walsh arising out of pornographic images said to have been found in his possession. The first part has now been published (see Criminal Law & Justice Weekly, vol 176, 22 September 2012, pp556-7).
Readers will recall that Mr Chambers was convicted in the magistrates’ court regarding a supposedly threatening tweet. His conviction was upheld in the Crown Court but eventually overturned by the Divisional Court.
The interesting point concerns the appeal to the Divisional Court. According to its most recent press release on the subject, the CPS did not support the conviction, but still appeared before the Divisional Court and “reluctantly” contested the appeal, because the conviction was based on a finding of the Crown Court, which only the High Court could overturn. I, for one, am most uneasy with the thought of the CPS contesting an appeal it thinks should fail.
To illustrate the point, let us start with two scenarios where the proper course for the CPS would be to acquiesce in an acquittal. In scenario A, a conviction is obtained but the CPS then discovers that it has been based on an outdated section, and the offence no longer exists. Or perhaps the conviction has been based on an authority since overruled.
In those circumstances the obligation of the CPS would be clear: they would have to bring the correct statute or authority to the Court’s attention, point out the error and accept the defendant’s acquittal.
In scenario B, the CPS is informed by the police that it turns out that the defendant had a watertight alibi after all, and therefore the conviction was based on a patently wrong factual foundation.
Again, the CPS would have to accept the error and tell the court that it did not oppose the appeal.
Let us now return to Mr Chambers. Here the situation was slightly different. The facts – essentially, the existence of the tweet - were never disputed. What was in issue was whether the tweet constituted an offence under the Communications Act 2003. I can find almost no published opinion which ever thought that it did, save for those few people in the legal chain (police, lawyers and judges) who made the conviction come to pass.
So how does this differ from scenario A or B? Only in the sense that interpretation of a statute is not as cut and dried as in the case where the offence has been abolished, as in scenario A, and unlike scenario B the facts of the Chambers’ case were not disputed, just whether or not they should have amounted to a crime. But it is not so very far removed, if everyone takes the view – as it seems they did by the time it reached the door of the Royal Courts of Justice – that the conviction was based on an interpretation of the statute that was simply not in accordance with reality, and was therefore unworkable. If the DPP accepts that that is the case, he should not be turning up to court hoping to lose.
Instead, he should point out all the arguments below and explain why he has taken the view that they were mistaken and that the defendant should be freed. The Court would then most likely ask some searching questions about the DPP’s change of heart. It would be very unlikely, however, though I suppose not impossible, that the Court would insist that the conviction stood.
The alternative would be for the DPP to contest the appeal. Suppose he does so and wins. In that case, a man would remain convicted despite the prosecution wishing he had never been charged, and presumably taking the view that no-one else in comparable circumstances would be charged ever again.
I venture to suggest that that would not be a just outcome.
Thursday, 8 March 2012
A modern-day "conchie"
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.
Sunday, 4 December 2011
Riot sentences - a response
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.
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.
Thursday, 24 November 2011
Fair trials and the freedom of the press: when fundamental principles conflict
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.
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.
Friday, 7 October 2011
When the press oppress
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).
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).
Sunday, 18 September 2011
No freedom of speech
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
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
Friday, 15 July 2011
R (on the application of Bashir) v Independent Adjudicator: religion in prison
Co-written with Anne-Marie Forker, and published in Criminal Law & Justice Weekly, Vol 175, 18 June 2011, p 373
The relationship between religion and the law seems now to be a permanent feature of public life in the United Kingdom – to the point where it reminds one of the children’s story about the magic pudding which, no matter how often it is eaten, always reforms in order to be eaten again.
One recent serving of the pudding concerns the right to practice religion in prison, which was the subject of R (Bashir) v Independent Adjudicator [2011] EWHC 1108 (Admin).
The facts
The claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis for the test was a suspicion that he had taken controlled substances. He was offered water before providing the sample, but refused on the ground that he was a devout Muslim who was fasting prior to a court hearing, as part of his religious preparation for the event. As a result of refusing water he was unable to provide a sufficient sample. He was charged with failing to obey a lawful rule contrary to r 51(22) of the Prison Rules 1999. He was convicted by a prison adjudicator and a penalty of 14 days’ additional detention was imposed. The adjudicator held that the claimant was not fasting as part of either Ramadan or any other religious festival, and therefore requiring him to provide a sample had been “appropriate”. The claimant applied by way of judicial review to quash the adjudicator’s decision, contending that it breached his right to practice his religion under art 9 of the European Convention on Human Rights.
The High Court
Judge Pelling found that the adjudicator’s approach to art 9 had been wrong; the correct approach required three questions: (i) whether the claimant’s rights under art 9 were engaged; (ii) if so, whether there had been an interference with those rights; and (iii) if so, whether the interference was one that was both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.
There was no real dispute both that art 9 was engaged and that there had been an interference with those rights. Accordingly question (iii) formed the nub of the substantive challenge. Moreover, since the drug testing was prescribed by law and at least one of the other aspects of art 9, the only aspect of (iii) that was in issue was whether it was proportionate to the end pursued.
Judge Pelling concluded that there had been no evidence before the adjudicator to suggest that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required for the purposes of providing a sample regardless of the circumstances. The decision therefore had to be quashed.
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.
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.
Tuesday, 10 May 2011
Necessity as a defence to murder
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.
Continue reading here.
Tuesday, 12 April 2011
Prisoners' voting rights and Britain's relationship with Strasbourg
I have been published in Criminal Law & Justice Weekly, Vol 175, 9 April 2011, p 229 on the subject of prisoner voting.
Wednesday, 23 February 2011
Religion and the criminal law: disregarding the faith
I have been published in Criminal Law & Justice Weekly, Vol 175, 26 February 2011, p 124 on the above subject.
Wednesday, 2 February 2011
R v Chaytor: expensive claims
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.
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.
Tuesday, 11 January 2011
Witchcraft during Wartime: the trial of Helen Duncan
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.
Continue reading at the above link.
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.
Continue reading at the above link.
Friday, 10 December 2010
An innocent abroad: the non-trial of P G Wodehouse
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.
Tuesday, 23 November 2010
Abu Hamza's passport: be careful what you wish for
This article is to be published in Criminal Law & Justice Weekly (vol 174, 27 November 2010, p 249)
The radical Muslim cleric Abu Hamza has won his recent appeal against the attempt by British authorities to strip him of his passport. Having already lost his Egyptian nationality, he argued successfully that removing his British passport would render him stateless.
It seems rather incongruous that Hamza wanted a British passport at all, given his reported attitude towards the British state. He might remember the old adage about being careful what you wish for: the last person to engage in claiming a British passport then trying to bring about the downfall of the state was the rather colourful William Joyce, better known as the wartime traitor Lord Haw Haw.
Joyce was a member of several different British fascist political parties during the 1920s and 30s (they tended to splinter and reform in a manner similar to Monty Python’s Judean parties in Life of Brian). As war with Germany loomed, Joyce, fearing internment, applied successfully to renew his British passport in order to flee the country.
Upon arriving in Berlin he soon began broadcasting propaganda for Nazi radio. Throughout the war he taunted the British over the airways about the bombing of their cities and constantly urged them to surrender. In June 1945 he was captured and charged with three counts of High Treason.
There was one problem: Joyce was not actually British. He was born in America, of Irish descent. Two of the counts therefore fell away on the ground that as a foreign national he had not owed allegiance to the Crown.
Joyce was, however, convicted on the count relating to the period of his broadcasting in which he had held a valid British passport (which had lapsed in 1940). The courts reasoned that since he had enjoyed the protection that that document conferred, had used it to travel and could have used it in a neutral state, he owed reciprocal obligations to the Crown during the period of its validity, notwithstanding that he hadn’t strictly been entitled to it in the first place.
His conviction was not without controversy, but it is hard to see any moral objection. Joyce had deceived the British authorities into thinking he was a British citizen when it suited him. He should have realised that they might go along with that pretence when it suited them. He fully deserved to come unstuck on that one.
In the years since, Joyce’s apologists have suggested he was executed out of revenge, or prejudice against his Irish origins.
Revenge is a distasteful motive, although it is easy for those who did not live through the terror of the Blitz to say so. As to the second point, Joyce was an ardent unionist who claimed to have fled Ireland to escape assassination by the IRA, making him a curious candidate for martydom in the cause of Irish independence.
Once it had been established that Joyce owed allegiance to the Crown for a certain period, then it did not matter that his impugned acts had been committed outside the jurisdiction, in the light of a case from the previous war involving another famous traitor, Sir Roger Casement.
Casement’s history was if anything more colourful than Joyce’s. He had gained fame, and a knighthood, for exposing colonial depredations in Africa and South America. Upon returning to the UK, he aligned himself with the cause of Irish nationalism. During the Great War he attempted (without much success) to obtain material support from Germany for an Irish uprising. He was caught and charged with treason on his return to the UK.
Casement’s defence argued that all of his impugned acts had taken place on German soil. That was deemed irrelevant on the court’s interpretation of the Treason Act 1351, which defined treason as giving the King’s enemies “aid and comfort in the realm, or elsewhere”; “elsewhere” being defined as elsewhere than the jurisdiction.
That ruling was also not without controversy but, as with Joyce, the moral position seems clear, leaving aside the merits of Casement’s cause of Irish independence, the mitigation of his good work in Africa and the Americas, and the still unresolved “black diaries” controversy (wherein he was alleged to have been involved in what in modern terms would be called predatory sex tourism). Someone leaving the jurisdiction, plotting to overthrow the state and then returning should not expect the state to find itself powerless to respond.
Archbold 2010 notes that the law of treason seems to have fallen into disuse, with no prosecutions since Joyce’s time despite a number of apparently qualifying individuals. The authorities seem now to prefer other charges. The offence remains on the statute books, however, and if the likes of Hamza persist in their ways it might pay the CPS to reconsider its use. Nowadays inflammatory speech might find a defence based on Art 10 of the European Convention on Human Rights, but other treasonous activities such as raising funds to support Britain’s enemies would not.
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.
Friday, 5 November 2010
Assisted Suicide again
I have co-written an article on the above with Lynne Townley which has been published in Criminal Law & Justice Weekly, vol 174 (6 November 2010) p 695.
Tuesday, 5 October 2010
BBC v The Stig again
Published on Halsbury's Law Exchange here.
Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.
As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.
Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.
In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.
As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.
Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.
Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.
Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.
Update: the UK Human Rights Blog has responded to this post here.
Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.
As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.
Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.
In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.
As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.
Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.
Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.
Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.
Update: the UK Human Rights Blog has responded to this post here.
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