Court tweets

A post for Halsbury's Law Exchange, published here


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

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

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

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

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

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

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

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

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

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

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

Judgment Matters

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

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

Appellate judgments serve two primary purposes:

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

(ii) to clarify the law.

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

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

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

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

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

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

Citation matters

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

Plurality judgments

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

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

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

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

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

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

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

Diversity

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

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

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

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

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

A model example

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

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

Postscript:

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

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

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

A Lord but not a Peer

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

This morning the Supreme Court made the following announcement:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Published in the New Law Journal 3 December 2010, p 1688


To date the only British Prime Minister to have been assassinated is the unfortunate Sir Spencer Perceval (1762-1812), and his place as a regular answer in pub quizzes across the land is thereby assured. No doubt there have been many other attempts, and indeed the total number of failed attempts can never be known.


Continue reading at the above link or in my new book (see the homepage of this blog for details)

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.

Change of name

For the second time I feel compelled to change the name of the blog.  The first time came about because the original name no longer reflected what the blog was about.  This time the change is required because Halsbury's Law Exchange, with which I am involved professionally, has decided to revamp itself and call its blog "The Legal Soapbox".  Rather than complain I will defer to the site in which I have a professional rather than personal interest.  Besides, there was already a blog by the name of Legal Soapbox, though it closed down a couple of years ago. 

Not that any of this matters, in so far as I have never tried to advertise or otherwise attract traffic to this blog; it simply exists to record things I publish elsewhere.  That said, Mrs Crumbs and Pegs has been kind enough to provide a link, for which I am of course grateful, and I've no objection to anyone reading or commenting on any of the posts, which a few friends have done from time to time.

Magna Carta and the European Convention on Human Rights

In 2015 Magna Carta will be 800 years’ old. Moves to mark the occasion have already begun with a ceremony held on 12 November in the meadow that is called Runnymede, between Windsor and Staines.

The Guardian’s report of the ceremony calls the history of the Charter “bizarre”, refers to the European Convention on Human Rights (the Convention) as its “modern equivalent” and makes critical remarks about the present government’s commitment to the Convention, concluding “King John probably would have approved.” Some of the comments below the article also raise the chestnut of Britain’s lack of a written constitution.

In order properly to understand the place of the Convention and the British Constitution, it is necessary to understand something of the history of the Charter, which is not bizarre at all but rather goes to the very essence of the nation and is most assuredly something we need to preserve.

It is trite that the original purpose of the Charter was to divide power between King John and the barons in a manner more favourable to the latter. Equally obviously the Charter did not of itself create our modern constitutional arrangements: these evolved continuously from the Charter through (among many other things) de Montfort’s Parliament, Dr Bonham’s case, the Prohibitions del Roy, the Civil War, the Glorious Revolution and the various extensions of the franchise, as well as the rediscovery of classical authors who had been largely forgotten by the thirteenth century.

The concepts which evolved from all those events – including the separation of powers, the rule of law and the restraint of executive power – not only created the unwritten British Constitution, but also were the guiding hand behind many other national charters (the best known being that of the United States), and also the international documents drafted in the aftermath of the Second World War, of which the two most important were probably the Universal Declaration on Human Rights and the Convention itself.

Therein, however, lies the key point. It was that history, with which generations of English lawyers and politicians were infused, which created the idea and, more importantly, the practice of the rule of law and limitations on government power. It was not due to any single document, or a written constitution.

By the most acute contrast, many nations which do have beautifully written constitutions continue by and large to ignore them. Zimbabwe is a case in point. The recent reports of oppression of Christians in Pakistan sit in stark discomfort with the ringing declaration in Pakistan’s constitution which provides unambiguously for freedom of religion for all.

In recent times it seems to me that Britain has had a tendency to disdain its past and to downgrade and denigrate the teaching of history and public law accordingly. Doing so is not merely philistinism; it is undermining the very reason for the rights and freedoms we enjoy and so many other countries do not. To be sure, those rights are imperfect, and even precariously held; but to suggest that this country is anything less than one of the most free and most respectful of the rule of law by international and historic standards is ignorant at best and fatally damaging at worst.

In summary, it is our history, tradition and culture which is the best preservation of our liberties, and Magna Carta can properly be said to be an important event at the early stages of that history. The grand celebrations to mark its octocentenary are therefore appropriate.

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.

R v Chaytor and others

The Supreme Court has just announced that the appeals in R v Chaytor and others (reported below at [2010] All ER (D) 335 (Jul)) have been dismissed, with reasons to follow.

The appeals concerned MPs facing criminal charges arising out the expenses scandal, who sought to argue that the courts had no jurisdiction to try them. 

One recalls Lord Denning's famous quotation of Thomas Fuller (Gouriet v Union of Postal Workers [1977] 1 All ER 696 at 718): 

“Be you never so high, the law is above you”