Published on Halsbury's Law Exchange here.
It was once said that justice, like the Ritz, is open to all. That was a variation on the old joke about French law being equal because it prevents the rich as well as the poor from sleeping under bridges. Since the advent of public funding, it has been more common to say that justice is only available to the very rich or the very poor ...
Whatever the truth of any of that, there is no doubt that any restrictions on legal aid (as presently being considered) will have some effect on access to justice. A second consequence, however, is that there are likely to be significantly more litigants in person. According to the BBC:
“The Judges' Council, which is chaired by Lord Igor Judge, the head of the judiciary, has warned that government plans to remove £350m from the legal aid budget could result in a surge of amateur barristers clogging up the system.
The Ministry of Justice (MoJ) insists there is "little substantive evidence" that litigants in person delay proceedings and that any increase should not significantly impact proceedings.”
The MoJ’s insistence deserves a response. The reason there is “little substantive evidence” is that properly researched statistics would be hard to come by. One would need to start by dividing hearings into those with the same cause of action – such as, for example, cases under s 288 of the Town and Country Planning Act 1990, ancillary relief cases, child custody hearings, road traffic prosecutions – and then compare the average length of hearings where both sides, one side or neither were represented. Then one would have to consider the factual and legal complexity of each individual case – which might differ significantly even between different examples of the same cause of action. Next one would have to take account of the different judges involved: some naturally progress cases quicker than others. To an extent that is dependent on the degree of familiarity the judge has with the particular subject matter – few judges could deal as expeditiously with planning cases as Sullivan LJ, for example.
One can therefore see the difficulty in compiling objective statistics simply from the duration of particular hearings. And the absence of such statistics on the subject means that there is equally little substantive evidence both for and against the MoJ’s proposition.
Having said that, however, the Judges’ Council is surely in an authoritative position to make at least a broadly accurate generalisation, given that it is able to draw upon the collective experience of those who actually conduct all the hearings. Its conclusion that hearings involving one unrepresented party almost always take longer than when both are represented is correct in the experience of the All England Law Reporters, who have covered countless hearings in the courts of record involving both represented and unrepresented parties over the years. There are several reasons why.
First, it is generally necessary for the litigant to be assisted with court procedure. Secondly, few have the skill of distilling relevant from irrelevant issues. Thirdly, even highly educated litigants in person are generally quite out of their depth in discussing any relevant authorities, statutes or points of principle, which therefore have to be explained at least to some extent (and even then the full significance is often not grasped). Fourthly, it is the duty of the other side’s barrister to draw all relevant authorities to the court’s attention and identify arguable points which the litigant might have missed, and this usually takes longer as the judge will want to be satisfied that that duty has been discharged. (It may also add to the (often unrecoverable) costs of the other side). Fifthly, judgments often take longer as the judges feel obliged to include more detail, with little homilies explaining points of law which ordinarily would not be necessary.
The Judges' Council's point is therefore sound. The point remains secondary, however, to the fundamental point of justice being done – and equally being seen to be done. If there is a basic inequality between representation of the parties, one is entitled to question whether the standard of the trial process will always be maintained. Law is a learned profession, as with, say, medicine or architecture, and it is idle to expect that a lay person could undertake even a straightforward medical diagnosis or design a simple building as well as a professional. It is equally expecting too much of lay people to assume they can competently represent themselves in court.
Tuesday, 1 March 2011
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, 1 February 2011
Negative returns: Mrs Gillick and the DHSS
Published in the New Law Journal, vol 161, 4 February 2011, p 178.
On my first day as an aspiring litigator, a partner gave some advice: litigation always goes wrong. Perhaps there was some exaggeration, but it was a sound enough warning. After all, at least half of all litigants would probably agree.
Continue reading at the above link
On my first day as an aspiring litigator, a partner gave some advice: litigation always goes wrong. Perhaps there was some exaggeration, but it was a sound enough warning. After all, at least half of all litigants would probably agree.
Continue reading at the above link
Thursday, 20 January 2011
Pastor Terry Jones' proposed visit to the UK
I don't have time to write a full piece for HLE or anywhere else at the moment, so have commented under the UK Human Rights Blog's entry on the subject instead.
Climate protests
Short piece for Halsbury's Law Exchange, published here. I might write a longer version for CL&J for later this year.
Environmental protests have received many headlines recently, with trespass and criminal damage being committed at a number of power stations in an attempt to interrupt their operation or shut them down altogether.
The protestors have often sought to argue that they were acting to prevent the greater wrong of the carbon emissions of the stations in question. Surprisingly, on at least one occasion (the Kingsnorth protestors in Kent) this argument has earned them an acquittal. Perhaps equally surprisingly some lawyers have written in support of this (see eg this entry on the respected UK Human Rights Blog) as well as making other radical suggestions such as expanding the law of tort to include the whole planet as a ‘neighbour’ and so on.
Two points should be made in response. First, as to the protestors, in a country with freedom of speech, freedom of association, a wide scope for lawful protest and, most of all, the ballot box, unlawful resistance can rarely be justified.
Secondly, it is laudable that lawyers follow and wish to act on environmental concerns. It should be obvious, though, that issues such as whether or not any particular power station should continue in operation need to be decided as part of the national energy policy. Formulating that policy involves highly complex questions requiring primarily engineering, chemical, economic and physical science expertise – how much power is needed, how much it is possible to generate and by what means, how much each option will cost, and what environmental effects will follow. To be blunt, lawyers and judges are not particularly qualified to answer any of those questions – any more than scientists and economists are best placed to determine technical legal points.
Environmental protests have received many headlines recently, with trespass and criminal damage being committed at a number of power stations in an attempt to interrupt their operation or shut them down altogether.
The protestors have often sought to argue that they were acting to prevent the greater wrong of the carbon emissions of the stations in question. Surprisingly, on at least one occasion (the Kingsnorth protestors in Kent) this argument has earned them an acquittal. Perhaps equally surprisingly some lawyers have written in support of this (see eg this entry on the respected UK Human Rights Blog) as well as making other radical suggestions such as expanding the law of tort to include the whole planet as a ‘neighbour’ and so on.
Two points should be made in response. First, as to the protestors, in a country with freedom of speech, freedom of association, a wide scope for lawful protest and, most of all, the ballot box, unlawful resistance can rarely be justified.
Secondly, it is laudable that lawyers follow and wish to act on environmental concerns. It should be obvious, though, that issues such as whether or not any particular power station should continue in operation need to be decided as part of the national energy policy. Formulating that policy involves highly complex questions requiring primarily engineering, chemical, economic and physical science expertise – how much power is needed, how much it is possible to generate and by what means, how much each option will cost, and what environmental effects will follow. To be blunt, lawyers and judges are not particularly qualified to answer any of those questions – any more than scientists and economists are best placed to determine technical legal points.
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.
Monday, 20 December 2010
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:
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.
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.
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.
Thursday, 16 December 2010
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.
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.
Monday, 13 December 2010
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.
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.
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