The delight of everyone

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

No freedom of speech

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

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


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

Continue reading here

Court on Camera

Published on Halsbury's Law Exchange here.

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

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

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

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

On the UK Human Rights Blog Adam Wagner observes:

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

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

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

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

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

2. Television fosters disrespect for the court

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

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

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

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

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

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

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

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

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

Herpes: Don't pass it on ...

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

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

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

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

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

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

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

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

Law and Libya again

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Template for the pitfalls of fame: the Fatty Arbuckle scandal

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

Andrew Turner MP and the death penalty

For Halsbury's Law Exchange, published here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Published in the New Law Journal, Vol 161, 17 June 2011, p 854  lawbites
Lord Denning is perhaps the most famous twentieth century English judge. His fame derives from several sources: partly from the number of high profile cases on which he sat; partly from his preference for justice as he saw it over precedent; and partly due to his inquiry into the Profumo affair, which, he later recalled, produced his one and only best seller. (It was also known as the "raciest Blue Book ever", though presumably not in the face of much competition.)

Perhaps uniquely amongst common law judges, Denning is also famous because of his judgment-writing style. It certainly endeared him to generations of law students, though not all law teachers: a curmudgeonly sort at my alma mater used to sneer at Denning's "short sentences and simplistic reasoning".

Still, Denning's judgments could never be accused of lacking clarity, and his unarguably short sentences could be crafted with such skill that his judgments on occasion attained the status of works of literature, as any reader of Miller v Jackson [1977] 3 All ER 338 will attest.

Born in 1899, and a veteran of the Great War, Denning displayed the values of his generation more than once, but he could also be forward-looking, perhaps most notably when ruling on the right of a deserted wife to remain in the matrimonial home. His judgments in the fields of property and contract were less well known publicly, but equally controversial in the legal profession: another professor of mine once suggested Denning “never met a plaintiff he didn’t like” (presumably Mrs Miller excepted).

Somewhat surprisingly, however, what Denning called "the greatest piece of judicial law reform in my time" did not arise from casting aside the patriarchal shackles of outdated social mores. It did not even concern substantive law. Instead, it was the creation of the pre-trial remedy of the Mareva injunction, by which assets in the jurisdiction can be frozen before trial in order to prevent unscrupulous defendants from removing them and thereby rendering any litigation fruitless.

The origins of the remedy are found in Nippon Yusen Kaisha v Karageorgis and anor [1975] 3 All ER 282, a case heard a month before Mareva.

Recently Lord Neuberger complained, with some justification, about the length of modern judgments. He would certainly have had a point in comparison with the Nippon Yusen Kaisha case – the lead judgment was all of four paragraphs long. Denning observed that it “has never been the practice of the English courts to seize assets of a defendant in advance of judgment, or to restrain the disposal of them. ... We know, of course, that the practice on the continent of Europe is different.” He then opined that it was time to revise that practice, and went on to grant the order, pointing out that if the defendants had grounds to object they could always apply to discharge it.

It was considered afterwards that the judgment might be defective, since the court had not been referred to Lister v Stubbs [1886–90] All ER Rep 797, where it had been stated that there was no jurisdiction to grant such an injunction. Thus, on 23 June 1975, Mareva Compania Naviera SA applied for similar relief to Nippon Yusen Kaisha, and addressed the Lister v Stubbs point directly.

On that occasion the judgment ran to all of three pages. Denning dealt with the Lister point breezily. He referred to s 45 of the Supreme Court of Judicature (Consolidation) Act 1925, which provided that an injunction could be granted “in all cases in which it shall appear to the Court to be just or convenient …”, and pointed out that its predecessor section had been given a very wide interpretation in Beddow v Beddow (1878) 9 Ch D 89. As it was just and reasonable to grant the injunction, Denning did so.

Roskill LJ agreed that the remedy was justified. As to the legal novelty, he pointed out that the charterers could always apply to the court to discharge the injunction, and referred almost sheepishly to the terms of the charter as providing a means of distinguishing Lister v Stubbs “if necessary”. Ormrod LJ concurred but declined to write a separate judgment as the application was ex parte.

It has to be said that the grounds for distinguishing Lister seem rather shaky. But the commercial justifications were unanswerable, and the point was never appealed further. Instead Mareva injunctions became standard practice, and a few years later Parliament codified the practice in the Supreme Court Act 1981 (see Paul Lowenstein QC “As if by a side-wind ...” in Cases that Changed Our Lives, Lexisnexis 2010). The jurisdiction was subsequently extended to include orders of worldwide application, and even cases where there is no substantive claim in England. Renamed “freezing order” in CPR newspeak, the remedy continues to form a substantial part of the business of the Commercial Court.

Denning, aged 75 at the time, took advantage of the absence of any mandatory retirement date and continued to sit until the early 1980s. He died in March 1999 aged 100.

Counsel for Mareva, Bernard Rix, is now Rix LJ and a resident of Denning’s old haunt of the Court of Appeal. One imagines that the number of times he has had occasion to recall that day in June 1975 over the course of a long and distinguished career in commercial litigation must be very considerable indeed.

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

Co-written with Anne-Marie Forker, and published in Criminal Law & Justice Weekly, Vol 175, 18 June 2011, p 373

The relationship between religion and the law seems now to be a permanent feature of public life in the United Kingdom – to the point where it reminds one of the children’s story about the magic pudding which, no matter how often it is eaten, always reforms in order to be eaten again.


One recent serving of the pudding concerns the right to practice religion in prison, which was the subject of R (Bashir) v Independent Adjudicator [2011] EWHC 1108 (Admin).

The facts

The claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis for the test was a suspicion that he had taken controlled substances. He was offered water before providing the sample, but refused on the ground that he was a devout Muslim who was fasting prior to a court hearing, as part of his religious preparation for the event. As a result of refusing water he was unable to provide a sufficient sample. He was charged with failing to obey a lawful rule contrary to r 51(22) of the Prison Rules 1999. He was convicted by a prison adjudicator and a penalty of 14 days’ additional detention was imposed. The adjudicator held that the claimant was not fasting as part of either Ramadan or any other religious festival, and therefore requiring him to provide a sample had been “appropriate”. The claimant applied by way of judicial review to quash the adjudicator’s decision, contending that it breached his right to practice his religion under art 9 of the European Convention on Human Rights.

The High Court

Judge Pelling found that the adjudicator’s approach to art 9 had been wrong; the correct approach required three questions: (i) whether the claimant’s rights under art 9 were engaged; (ii) if so, whether there had been an interference with those rights; and (iii) if so, whether the interference was one that was both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There was no real dispute both that art 9 was engaged and that there had been an interference with those rights. Accordingly question (iii) formed the nub of the substantive challenge. Moreover, since the drug testing was prescribed by law and at least one of the other aspects of art 9, the only aspect of (iii) that was in issue was whether it was proportionate to the end pursued.

Judge Pelling concluded that there had been no evidence before the adjudicator to suggest that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required for the purposes of providing a sample regardless of the circumstances. The decision therefore had to be quashed.

Comment

We have no dispute with the judge’s approach to art 9. Rather, our difference is with the conclusion that the drug policy could potentially be a disproportionate interference with the claimant’s rights. While the state is obliged to allow religious beliefs and practices, it is not obliged to make exceptions to the general law based on someone's religious beliefs – provided, of course, that the general law is not aimed at discriminating against or suppressing particular religions.

If it could have made no difference either to the state or to any private individual (including other prisoners), then we would have no objection to the state accommodating religious practices for prisoners. But making exceptions to the disciplinary regime – of which drug testing is at the core – is as unworkable as it is unfair. If one has an exception due to a fast, then why not some other activity? And, to ensure non-discrimination, non-religious beliefs of any particular prisoner would also have to be accommodated.

Religious exemptions are found elsewhere in the criminal law, such as s 139 of the Criminal Justice Act 1988 and ss 3 and 4 of the Offensive Weapons Act 1996, which allow Sikhs to carry the Kirpan on religious grounds. Is permitting this not increasing the likelihood of harm to others, something the criminal law aims to reduce? We are not suggesting for a moment that Sikhs are more likely than other groups to use knives in a criminal fashion, but rather that increasing the quantity of knives being carried by any section of society in the general public increases the risk of harm to others. Practicing religion should be subject to the same standards as non-religious activities (see also p 124 ante).

Contrary to the tabloid view that equality is somehow harmful to religion, we believe that excluding religion from public life is actually the best protection for religion, because it ensures all religions are treated equally.

Free Speech: American and British perspectives

For Halsbury's Law Exchange

This Thursday Politeia is hosting an evening on the different approaches to Freedom of Speech in the United Kingdom and United States. It is a particularly topical subject, needless to say, in the year of the superinjunction. Here are a few thoughts on the differences between legal approaches in the two countries, on which I freely stand to be corrected if my knowledge of American law proves as deficient as I suspect.

Both the UK and the US have a strong – and interwoven – history of free speech. As a concept in political philosophy, arguments for free speech that are strikingly modern in content can be found in Milton’s Areopagitica, and later in the famous harm principle of Mill’s On Liberty. As a legal concept, however, free speech developed primarily in the United States in the twentieth century, pursuant to the explicit protection of the First Amendment to the Constitution.

Nowadays, an equivalent jurisprudence is being developed by the European Court of Human Rights and the domestic courts of member states under art 10 of the European Convention on Human Rights (the Convention). There is, however, a significant difference in the wording of the American and European constitutional documents. The First Amendment is in these apparently unqualified terms:

“Congress shall make no law abridging freedom of speech ...”

Even the Ten Commandments would struggle to compete with that lack of ambiguity. A moment’s reflection, however, shows that it would be impossible to comply with the First Amendment literally: “no law” abridging freedom of speech would mean no law preserving state secrets, no copyright protection and no confidentiality for medical records, for a start. Equally it would mean allowing the most outlandish libel and slander, wildly misleading advertising, and so on and so forth – to the point where no law abridging freedom of speech would effectively mean no law at all.

The American courts have therefore had to permit many an abridgement to free speech over the years. In doing so, they have attempted to fashion principled exceptions, whilst at least paying lip service to the uncompromising nature of the First Amendment. Often this involves reclassifying something as “not speech”, or conversely permitting something controversial such as pornography on the ground that it is “speech” even though for the most part no-one might be saying anything.

By contrast, art 10 of the Convention starts with a declaration of the right to free expression, but then adds that the exercise of that right may be subject to such restrictions as are:

“prescribed by law and are necessary in a democratic society ...”

Thus, while any form of speech automatically engages the protection of art 10, the protection might be withdrawn if the infringement under question meets the qualifying criteria – but only to the extent that it does.

In the UK additional weight is given by s 12 of the Human Rights Act 1998, which provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered.

The different wording of the First Amendment and the Constitution is accordingly more apparent than real: the Convention effectively codifies the same approach that the US courts are compelled to take by the impossibility of literal First Amendment compliance: allowing restrictions, but only where lawful, necessary and proportionate.

Nevertheless, it is fair to say that protection of speech has tended to be been stronger in the United States.

There are at least three interrelated reasons. First, since the American courts are effectively compelled to undertake a form of rhetorical trickery - or even intellectual dishonesty - to proscribe speech given the bluntness of the First Amendment, they tend to be very reluctant to do so.

Secondly, and much more importantly, the First Amendment has long been central to American political debate and American culture generally, in a fashion that does not really find any equivalent in Europe (save arguably for the Dutch culture of tolerance). Knowledge and indeed reverence of the First Amendment is far greater in the US than knowledge of art 10 in Europe.

Thirdly, under the Convention, European courts are required to balance art 10 with other Convention rights, such as the right to privacy. The Convention does not give priority to art 10 over those other rights; the courts are required to afford them equal weight. In America that argument would be much harder to advance.

One can see any number of recent manifestations of the different approaches, such as the respective cases on soldier’s funeral protests; Tiger Woods’ unremitting media coverage versus the British footballing superinjunctors; and the fortunes of Pastor Terry Jones.

It is difficult to summarise, let alone add to the daunting volume of philosophical works by American jurists who have considered the concept of free speech, from robust proponents such as Ronald Dworkin to the more sceptical such as Stanley Fish.

For my money one of the most compelling arguments in favour of the American approach is the analogy advanced by Judge Richard Posner with America’s cold war strategy. The front line against the USSR, he observes, was not the Potomac but the borders of Western and Eastern Europe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often violent, sadistic, sordid or nonsensical manifestations of speech, as with Hustler’s article or the funeral protests. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

When deciding what is or what is not a proportionate interference with art 10, the European Courts might consider a similar perspective.