Victorian extras II

Jack the Ripper, the subject of my previous blog, was unquestionably the most famous real-life Victorian criminal. Equally unquestionably, the most the most famous fictional Victorian crime fighter was the denizen of 221B Baker St, one Sherlock Holmes. As it happens, Holmes’ creator, Sir Arthur Conan Doyle, was a great cricketing fan. Conan Doyle regularly played for a team called “The Authors”, and on occasion was joined by both AA Milne and JM Barrie.

One of Conan Doyle’s more regular teammates was his brother-in-law, EW Hornung, who created the gentleman thief Arthur Raffles. Raffles was the “anti-Holmes”, in that he put his genius in the service of crime rather than against it. In the early books at least, Raffles’ status as a gentleman was regularly emphasized by his cricketing credentials (he played for “Gentlemen of England”), and he liked to separate criminals into gentleman amateurs and working-class professionals, just as cricketers were classified at the time. 

As well as turning out for the Authors, Conan Doyle played ten first class matches for MCC between 1899 and 1907. He was primarily a batsman, though his highest score for MCC was only 43. Far more impressive was the fact that his sole first class wicket was none other than W.G. Grace.[1]

By dismissing Grace, Conan Doyle lived every cricketer’s dream. He also had the literary talent to sum up the experience, in writing a poem.  It is a vivid portrayal of what it must have been like to face Grace on the field, and is also the perfect embodiment of Victorian cricketing ideals.  The verse begins:

Once in my heyday of cricket,

One day I shall ever recall!

I captured that glorious wicket,

The greatest, the grandest of all.

Before me he stands like a vision,

Bearded and burly and brown,

A smile of good humoured derision

As he waits for the first to come down.

A statue from Thebes or from Knossos,

A Hercules shrouded in white,

Assyrian bull-like colossus,

He stands in his might.

With the beard of a Goth or a Vandal,

His bat hanging ready and free,

His great hairy hands on the handle,

And his menacing eyes upon me.

(…)

Sir Arthur Conan Doyle, A Reminiscence of Cricket

Not all Victorian poets wrote about cricketing joi de vivre in the manner of Conan Doyle.  A E Housman, for example, wrote in A Shropshire Lad:

“Now in May time to the wicket

Out I march with bat and pad:

See the son of grief at cricket

Trying to be glad.

Try I will; no harm in trying:

Wonder 'tis how little mirth

Keeps the bones of man from lying

On the bed of earth.”

Those were the sort of sentiments one might associate with Houseman’s fictional near-contemporary Eeyore (the creation of Conan Doyle’s occasional teammate), or perhaps more appropriately the Great War poets a generation or so later.  All part of the rich tapestry of cricket, I suppose … 

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[1]               The match was between MCC and London County at Crystal Palace in August 1900. Grace was out caught behind off Conan-Doyle’s bowling in the second innings, having scored 110. Cricinfo has the scorecard here

Intervention in Syria

I have posted the following comment on the UK Human Rights Blog this morning:

Much as the international law question is interesting regarding Syria, it is nothing to the point. There are a lot of straw men arguments floating around. No-one disputes that what has happened in Syria todate has been a disaster. No-one disputes that the use of chemical weapons is appalling. There is a moral case to do something about it, and perhaps a legal one too.

But we then hit the rocks of reality: the real question is whether we have the capacity to do anything about it. If we fire a few missiles at Syria the regime may respond in a variety of ways. It might cease using chemical weapons and simply go back to airstrikes, artillery and other means which have so far killed 100,000 people. What the moral or legal difference between killing by those means and killing by chemical weapons is I am unsure – I doubt the victims noticed any difference.

Alternatively, the regime might increase its use of chemical weapons to try and hasten the defeat of the rebels before Western intervention can make a telling difference. Or it might try something seriously desperate such as attacking Israel (either directly or by a proxy group), in the hope of drawing in its Iranian ally and sending the West’s interest well and truly elsewhere. Or it might sponsor some terrorist attacks on British soil. Or the Russians and/or Iranians might (if they haven’t already) supply supersonic anti-shipping missiles to the Syrians, who will use them to sink a few Western warships and cause chaos among Western leaders about what to do in response.

It seems to me that Assad will probably still win the civil war, and all we will do with a few token strikes is delay his victory – and consequently increase the casualties on all sides.

Or the regime might fall – in which case the civil war will continue until the country either splits into different territories with an uneasy truce, or until one side is strong enough to crush the rest.

Those calling for intervention must answer two questions: (i) what is the precise goal of any military action; and (ii) how far are you prepared to go to achieve that goal; that is, if the initial strikes fail, how much force are you going to use (or to put it another way, how much blood and treasure you are prepared to expend).  It does not help in this regard that the UK defence budget has been drastically reduced in recent years.  The Type 45 destroyers, for example, have not been fitted with cruise missiles - the first weapon of choice for any attack on the Syrian regime.

As well as the obvious lessons from Iraq and Afghanistan, we might also remember Kosovo (an illegal war, incidentally, whatever one thinks of the moral situation), where a few token strikes did not deter Milosovic, forcing the West to mount a very expensive bombing campaign that only succeeded when the surrounding countries started to join NATO, thus opening up land borders and the possibility of a quick ground assault. 

What we might do instead is assist Jordan by supplying tents, food, sanitation equipment etc for the increasing number of refugees it is taking from the conflict. That would be a humane and tangible contribution even if it would not stop the killings in Syria itself.  Funding for the operation could come from the international aid budget, the source of some controversy recently.  

The last Englishman: Colonel A D Wintle MC

I have been published in the New Law Journal (vol 163, 26 July 2013, p 22) this week, concerning the legendary Colonel Wintle. The article can be found here.

Smith and others v Ministry of Defence [2013] UKSC 41: the fog of war descends on the courtroom

The military theorist von Clausewitz once said that no plan survives contact with the enemy.  Real life confirms it: rare it is that wars ever go to plan. Even in the most successful engagements there have almost always been needless casualties caused by equipment failure, human error or a combination thereof.  In both Gulf Wars, for example, despite the overwhelming superiority of coalition forces, the very high level of technology at their disposal, and the swift conclusion of the initial military operations with extraordinarily low allied casualties, there were still friendly fire incidents where British and American soldiers were killed by their own side due to mistaken identity.

Recognising the inevitable consequences of the “fog of war” and the undesirability of civilian judges trying to sift through the evidence long after the event, the common law has developed the doctrine of “combat immunity”, under which anything that happens during battle is non-justiciable (see for example Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, Ex p Marais).

In Mulcahy v Ministry of Defence [1996] QB 732 the Court of Appeal preferred to see combat immunity not so much as an entirely separate principle as the result of a general conclusion that it was not fair, just or reasonable to regard the Crown or its martial emanations as under a duty of care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of war, but we can leave aside such doctrinal niceties for now.

The families of victims of one friendly fire incident in the 2003 Iraq war have brought proceedings against the Ministry of Defence (MOD).  The MOD applied to strike out the claims on the ground of combat immunity.  The Supreme Court by a majority decision has recently ruled against the MOD on that preliminary issue and allowed the claims to proceed to trial (Smith and others v Ministry of Defence [2013] UKSC 41).  There were claims arising out of different incidents, but we will confine ourselves here to what were called the “Challenger claims”.  In my view the dissenting judgment of Lord Mance was compelling.  The decision of the majority to allow the claims to proceed to trial is unsupportable in principle and may have severe practical implications. 

The Challenger claims involved one British Challenger II tank firing on another, with fatal consequences.  The claimants alleged that if the tanks had been properly equipped with existing technology and equipment, the incident would have been prevented.

The majority of the Supreme Court accepted that combat immunity was not limited to the presence of the enemy or the occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which service personnel were exposed to attack, including the planning and preparation for the operations in which the armed forces might come under attack or meet armed resistance. Further, there was no duty, in battle conditions, to maintain a safe system of work.

However, the doctrine should be narrowly construed.  It extended to the planning of and preparation for military operations applied to the planning of and preparation for the operations in which injury had been sustained.  But it did not extend to the planning and preparation, in general, for possible unidentified further operations (see Lord Hope at [88], [92] and [98] of the judgment).

With respect to the Challenger claims, at the stage when men were being trained, whether pre-deployment or in theatre, or decisions were being made about the fitting of equipment to tanks or other fighting vehicles, there was time to think things through, to plan and to exercise judgment. Those activities were sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that was imposed had regard to the nature of those activities and to their circumstances.

Recognising the dangerous implications, Lord Hope cautioned (at [100]) that:

it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable.

And yet by allowing the case to proceed to trial, Lord Hope with the greatest of respect has not taken account of that paramount importance. 

The decision of the majority relies on the following argument. A casualty might occur due to an equipment problem foreseeable and entirely within the power of the MOD to remedy before long before the war had started or even looked like starting. If so, why should the MOD hide behind combat immunity for decisions taken thousands of miles away and many months before hostilities?  

The answer is set out in cutting fashion by Lord Mance. The supply of technology and equipment, training for active services, and decisions taken on the ground during an action are all inevitably inter-linked.  The claimants had been careful not to make any criticism of the commanders on the ground.  But the attribution of responsibility could not depend on how the claimant framed his case.  Lord Hope recognised the problem but considered that all such circumstances had to be evaluated with a view to striking a balance between competing considerations.  Lord Mance concluded the opposite – that all such circumstances were inter-related and essentially non-justiciable.

At para [131] he stated:

The claimants’ case is that during or after any war any injured soldier or the relatives or dependants of any soldier killed in combat could sue the state for alleged failures in the preparation or equipping of the armed forces for combat. Logically, if that is so, then a soldier might, even during the war, complain that his or her equipment or training was inadequate and that it would be a breach of the state’s common law duty of care and/or duties under the Human Rights Convention even to order him or her to go into combat with it. If domestic legislation compelled this, then the soldier could seek relief in the Strasbourg court - maybe even interim relief prohibiting the further use or giving of orders to use the allegedly defective equipment. (…) Pointing to defective equipment and seeking to ban its use could have a considerable disruptive effect. Not only would there be a huge potential diversion of time and effort in litigation of such issues in an area of essential national interest (whether before, during or after hostilities). There must be risks that the threat of exhaustive civil litigation following any active military operation would affect decision- making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed.

By way of example he cited a number of well-known incidents – the defeat at Isandlwana, the failure of the War Office to appreciate Lancelot de Mole’s idea for the tank in 1912 and the fall of Singapore.  The defeats against the Zulus and the Japanese involved a number of tactical, planning and equipment blunders, while it is anyone’s guess what might have happened in the trenches had de Mole’s suggestion been taken up immediately upon it being made. (Or, one might add, if Whittle's invention had been acted on in the early 1930s.)  But a courtroom is not the place to try and disentangle all of the competing factors and decide what would or could or should have happened.

The number of further examples that could be added is limited only by one’s imagination. HMS Hood was known to be vulnerable to plunging shellfire due to her inadequate deck armament. That knowledge compelled Admiral Holland to give away his superior position at the start of the Battle of Denmark Strait, and five minutes later the Hood was destroyed. Should he have refused to leave port? 

Should pilots have refused to fly the Fairy Swordfish, which was known to be hopelessly obsolete in 1939 (but which went on to succeed at Taranto and against the Bismark, but was ruthlessly cut down in the Channel Dash)?  

Were casualties incurred during the Falklands because the British boots were unfit for purpose (conceivably, ground could have been covered more quickly otherwise and the troops would have been in better condition when closing with the enemy)?  

Should all the politicians of the past two decades be sued because, despite a defence budget as large as the French, the latter manage to develop their own jet (cf the Eurofighter conglomerate fiasco), build their own nuclear powered aircraft carrier (cf the QE class endless delays and cost overruns) and field many more troops? 

Why was no-one court martialled over the Royal Marine hostage fiasco in Iran a few years ago (the commander of the boarding party, the ship from which they deployed, and the commander of the fleet in the region would have been good places to start)?

As Adam Wagner pointed out here, it calls to mind the old rhyme

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

http://en.wikipedia.org/wiki/For_Want_of_a_Nail

The answer is that issues arising from tactical decisions are for military debriefing sessions and, where appropriate, courts martial.  Procurement issues are for the political process.  Neither is suitable for the civilian courtrooms.  

Parliament and war - William Hague's proposals

Last week the Times reported that William Hague proposes to give MPs a veto over proposed military action (Times, p 6, 4 January).  This proposal might be compared with the United States’ War Powers Resolution of 1973. Part of the fallout from the Vietnam War, the Resolution permits the executive to start military action, but requires Congressional approval after 60 days (with a further 30 day withdrawal period). This affords the executive the flexibility to respond to emergencies and to retain the element of surprise. It therefore answers two of the objections identified in your report about Mr Hague’s proposal.


The 1973 Resolution is not without its problems, however. For a major campaign it would be an operational nightmare for Congress suddenly to withdraw funding after two months, and political pressure not to compromise the action would be immense, so the provision may be more theoretical than real.

Secondly, during the Libyan campaign, the White House’s position was that the Resolution could not be invoked because the operation did not constitute a “war”. The reasoning given was that American forces were not engaged in sustained fighting or “active exchanges of fire with hostile forces”.

As I have argued in my book (Cases, Causes and Controversies: fifty tales from the law), that argument was entirely fallacious. The United States was (among other things) deploying armed drones to assist rebels attempting to topple the Libyan regime. Attempting to remove a sovereign government by force is a war in anyone’s language. Had a foreign-controlled drone fired on President Obama in the White House, for example, America would have considered it to have been the clearest declaration of war imaginable, and would have responded with the full weight of its armed forces without the slightest hesitation.

Thus one can expect that any mandatory veto granted to Parliament would have to allow not simply for emergency situations but also realpolitik, which seldom appears in a more cynical form than it does in the realm of armed conflict.

J'Accuse - the Dreyfus affair then and now

I have been published in this week's New Law Journal, vol 162, 16 November 2012, p 1434 (£), on the Dreyfus affair.

Armed Forces and policies on defence

Published in the Times, 22 September 2012. It was the lead letter for the day.

Dear Sir


George Webster correctly applauds Paul Flynn MP’s defence of the generals of the Great War against the common misconception of “Lions led by Donkeys” (letter, Sept 20). Contrary to popular belief, the phrase did not originate in that conflict. More to the point, had British generals been hopelessly incompetent it is unlikely that they would have finished on the winning side, never mind with the victories of the “hundred days” in 1918 behind them. In fact, 1918 was probably the only time in its entire history that the British army could claim to be the most powerful field army in the world.

There, is, however, one point on which I would take issue with Mr Flynn. It is true that few ministers have covered themselves in glory with respect to defence in recent years, whether in terms of short-term procurement, long-view White Papers or, most importantly, starting and conducting foreign wars. But it is another matter to exculpate today’s generals for any of those issues. Where is the evidence that any senior officers advised the government in 2003 that the British army was wholly unsuited in terms of training, equipment and rules of engagement for the reconstruction and counter-insurgency that would have to follow any successful invasion of Iraq? How many officers have had their careers halted by the subsequent events in that country or Afghanistan?

Instead the armed forces have successfully inferred that it has all been the fault of politicians, without mentioning who advises those politicians. This is no more honourable than those former members of Mr Blair’s cabinet who claimed in their later memoirs that they did not really support the Iraq War and had doubts about the PM’s judgement, despite not voting against the invasion or resigning their posts at the time.

A flying nuisance

I have a friend who grew up in the 1970s near to RAF Waddington, where Vulcan bombers were based. He has dryly remarked on more than one occasion that those who complain about noise from Heathrow should try having four Olympus engines in a holding pattern above their house for half an hour or so. I myself have seen B.2 XH558, the last surviving Vulcan, flying at an airshow, where a different friend accurately summed up the noise as “the sound of doom”.


But the Vulcan bomber hails from a very different age. It first flew in 1952, when the British jet industry was in its heyday. That year a disastrous crash of a DH 110 at the Farnborough Air Show left 29 spectators dead. Not only did none of the survivors or the families of the deceased sue anyone afterwards, the organisers did not even stop the event. Instead the dead bodies were cordoned off and the rest of the day proceeded on schedule.

No doubt the primary reason was that all adults present had lived through the war, and would therefore have experienced even worse tragedies many times. Their respect for the forces would also have been of a different order to the present day.

In more recent times, by contrast, the European Court of Human Rights has had to grapple with the aforesaid Heathrow denizens bringing proceedings about aircraft making them lose sleep. The claim was rejected, though not without a few newspaper columnists dispensing insults about pointless claims and an enfeebled age.

Now the Telegraph reports that a different homeowner, one Mr John Jones, has tried a more direct form of action after RAF jets overflew his property on a regular basis. Mr Jones contended that the pilots were acting like “hooray Henrys” and “opening the throttle” over his property up to 75 times a day. In response he raised a weather balloon and warned the nearby airbase of its presence. He has since made a complaint to the Civil Aviation Authority.

If it were a purely civilian matter things would be easier for Mr Jones. He could simply sue for nuisance and it is hard to imagine that any private activity which generated the sort of noise that a low-flying fast jet does would not result in the perpetrator either being compelled to stop or to pay substantial damages or both.

Where the military is concerned, however, there is a substantial countervailing factor in the form of the public interest in an effective defence force. That means, among other things, regularly flying fast jets for training and patrols, and of course the planes have to fly somewhere. In a small and relatively crowded country like the United Kingdom the chances of them always avoiding civilian areas are slim.

Moreover, tight controls about speed and altitude are properly imposed on civilian pilots, but fighter pilots have to hone their skills flying as low and as fast as possible.

Similar issues were considered in the case of Dennis and another v Ministry of Defence [2003] All ER (D) 300 (Apr). Mr Dennis, the owner of an estate in Norfolk, brought an action against the Ministry of Defence arising from the loss of amenity caused by Harrier jets flying from RAF Wittering. The claim was brought in common law nuisance and for breaches of Art 8 of and Art 1 of the First Protocol to the European Convention on Human Rights. Mr Dennis was anxious that the judge accept that he was a supporter of the RAF and that he strongly believed in the need for a fast jet force – just not in his backyard.

The approach the judge took was that while the public interest should be considered in relation to nuisance, selected individuals should not be forced to bear the cost of the public benefit. It was therefore appropriate to weigh the public interest not when deciding whether a nuisance existed, but at the remedy stage. That way, it would be open to the court to allow the nuisance to continue while requiring the public as opposed to Mr Dennis alone to pay for its benefit.

In the event Mr Dennis was awarded damages of £950,000 and the flying was permitted to continue (or rather it was, until the Harrier fleet was retired in somewhat controversial circumstances).

Assuming, therefore, Mr Jones is not satisfied by his complaint to the CAA, he might bring an action along the lines of Mr Dennis. Whether he would succeed would depend on the particular facts, but the earlier case gives an example of how the public interest can be preserved without eviscerating the claimant’s private rights.

One hopes matters do not get that far, if only because the ever-shrinking defence budget could better be spent elsewhere. Then again, there is no justification for the military to have carte blanche to fly anywhere it likes in peacetime: Britain is not, after all, a military dictatorship. Moreover, the fundamental importance of property rights – key to our freedom and economic prosperity – requires that when the state does something which reduces the value of a citizen’s property, the citizen should be compensated, even if there is a strong public interest in the state’s activity.

Accordingly, absent a compelling military need, there is no justification for permitting the more adventurous pilots regularly flying low and fast with no compensation to affected citizens, and cases such as Dennis show the sort of sensible compromise that can be reached.

Some hardened RAF veterans might be unimpressed. Even in the halcyon days of the British jet age, however, fairly strict controls were imposed by the RAF itself on flying over residential areas. Also, they might even see an upside. Flight Lieutenant Alan Pollock’s legendary protest by way of flying through Tower Bridge in a Hawker Hunter jet (memorably described in James Hamilton-Paterson’s book Empire of the Clouds: When Britain's Aircraft Ruled the World (2010)) was, I suspect, all the more satisfying for him knowing how many regulations he must have been breaking while he was doing it….

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.

Law and Libya again

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.

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.

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. 

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 Bribery Act 2010 - hoping against hope?

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

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

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

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

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

Investigation

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

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

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

Standpoint

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

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