"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

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:

"... 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.

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.


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.


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.

Friday, 10 December 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, 25 November 2010

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)

Tuesday, 23 November 2010

Abu Hamza's passport: be careful what you wish for

This article is to be published in Criminal Law & Justice Weekly (vol 174, 27 November 2010, p 249)

The radical Muslim cleric Abu Hamza has won his recent appeal against the attempt by British authorities to strip him of his passport. Having already lost his Egyptian nationality, he argued successfully that removing his British passport would render him stateless.

It seems rather incongruous that Hamza wanted a British passport at all, given his reported attitude towards the British state. He might remember the old adage about being careful what you wish for: the last person to engage in claiming a British passport then trying to bring about the downfall of the state was the rather colourful William Joyce, better known as the wartime traitor Lord Haw Haw.

Joyce was a member of several different British fascist political parties during the 1920s and 30s (they tended to splinter and reform in a manner similar to Monty Python’s Judean parties in Life of Brian). As war with Germany loomed, Joyce, fearing internment, applied successfully to renew his British passport in order to flee the country.

Upon arriving in Berlin he soon began broadcasting propaganda for Nazi radio. Throughout the war he taunted the British over the airways about the bombing of their cities and constantly urged them to surrender. In June 1945 he was captured and charged with three counts of High Treason.

There was one problem: Joyce was not actually British. He was born in America, of Irish descent. Two of the counts therefore fell away on the ground that as a foreign national he had not owed allegiance to the Crown.

Joyce was, however, convicted on the count relating to the period of his broadcasting in which he had held a valid British passport (which had lapsed in 1940). The courts reasoned that since he had enjoyed the protection that that document conferred, had used it to travel and could have used it in a neutral state, he owed reciprocal obligations to the Crown during the period of its validity, notwithstanding that he hadn’t strictly been entitled to it in the first place.

His conviction was not without controversy, but it is hard to see any moral objection. Joyce had deceived the British authorities into thinking he was a British citizen when it suited him. He should have realised that they might go along with that pretence when it suited them. He fully deserved to come unstuck on that one.

In the years since, Joyce’s apologists have suggested he was executed out of revenge, or prejudice against his Irish origins.

Revenge is a distasteful motive, although it is easy for those who did not live through the terror of the Blitz to say so. As to the second point, Joyce was an ardent unionist who claimed to have fled Ireland to escape assassination by the IRA, making him a curious candidate for martydom in the cause of Irish independence.

Once it had been established that Joyce owed allegiance to the Crown for a certain period, then it did not matter that his impugned acts had been committed outside the jurisdiction, in the light of a case from the previous war involving another famous traitor, Sir Roger Casement.

Casement’s history was if anything more colourful than Joyce’s. He had gained fame, and a knighthood, for exposing colonial depredations in Africa and South America. Upon returning to the UK, he aligned himself with the cause of Irish nationalism. During the Great War he attempted (without much success) to obtain material support from Germany for an Irish uprising. He was caught and charged with treason on his return to the UK.

Casement’s defence argued that all of his impugned acts had taken place on German soil. That was deemed irrelevant on the court’s interpretation of the Treason Act 1351, which defined treason as giving the King’s enemies “aid and comfort in the realm, or elsewhere”; “elsewhere” being defined as elsewhere than the jurisdiction.

That ruling was also not without controversy but, as with Joyce, the moral position seems clear, leaving aside the merits of Casement’s cause of Irish independence, the mitigation of his good work in Africa and the Americas, and the still unresolved “black diaries” controversy (wherein he was alleged to have been involved in what in modern terms would be called predatory sex tourism). Someone leaving the jurisdiction, plotting to overthrow the state and then returning should not expect the state to find itself powerless to respond.

Archbold 2010 notes that the law of treason seems to have fallen into disuse, with no prosecutions since Joyce’s time despite a number of apparently qualifying individuals. The authorities seem now to prefer other charges. The offence remains on the statute books, however, and if the likes of Hamza persist in their ways it might pay the CPS to reconsider its use. Nowadays inflammatory speech might find a defence based on Art 10 of the European Convention on Human Rights, but other treasonous activities such as raising funds to support Britain’s enemies would not.

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.

Monday, 15 November 2010

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.

Thursday, 11 November 2010

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).


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).


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.

Wednesday, 10 November 2010

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

Monday, 8 November 2010

Religion and the law once more: response to the Guardian

A shortened version of this article has been published here.

The Guardian’s legal blogger Afua Hirsch has posted on the subject of religion and the law, something I have written about on two previous occasions for Halsbury’s Law Exchange. It is worth returning to the subject to set something against what I believe are inconsistencies and misunderstandings in Ms Hirsch’s post.

Ms Hirsch first considers the remarks of the sentencing judge in the case of Roshonara Choudry, who had been convicted of the attempted murder of Stephen Timms MP. Ms Hirsch is angered by the judge’s comments that Timms’ own faith involved very different values from those of the defendant, and the judge’s suggestion of a “cosy” relationship between Christianity and the common law.

One might note that it ought not to be controversial to contrast the values of an innocent victim with those of an attempted murderer, and that it is undeniable that Christianity played an important role in the development of the common law (though not always for good, if one considers historic religious discrimination).

That said, the judge should not have made any comparison between the respective religious values of the defendant and victim, for the simple reason that it is irrelevant to the exercise of criminal sentencing. All that is relevant, aside from the circumstances of the offence itself, is the previous conduct of the defendant. In a country with freedom of religion this does not include her conduct in spiritual matters per se (pace Cherie Booth QC, who when sitting as a deputy judge controversially cited the apparently devout religious beliefs of a defendant as a mitigating factor). Membership or association with a group agitating for murder (religious or otherwise), on the other hand, would be an aggravating factor, as any previous conviction would be.

Equally, the victim’s beliefs or any other aspect of the victim’s life is also irrelevant, except for his conduct in relation to the specific offence – that is to say the usual criminal law considerations such as provocation. Even if he was a career criminal, unless one is to support vigilantism, that cannot provide mitigation much less exculpation of the defendant.

Next Ms Hirsch attempts to link the case with “a series of incidents that have appeared to pitch religious communities against the courts”. She offers two examples: (i) that of Gary MacFarlane, a registrar dismissed for refusing on religious grounds to conduct same-sex civil ceremonies, and (ii) that of George Bathurst-Norman, a judge recently disciplined for making comments about Israeli actions in Gaza during the trial of activists alleged to have damaged an armaments factory which had supplied weapons to Israel, something she says will have offended “pro-Israeli Jewish people”.

I have already blogged on the MacFarlane case, and won’t repeat anything save to observe that the relationship with the Timms case is slim.

As to the Bathurst-Norman incident, Ms Hirsch is wrong to suggest it would only have been pro-Israeli Jewish people who objected to his comments. A free society is founded on the principle of freedom under law. The protestors had the right to demonstrate outside the factory. They had any number of options to exercise their freedom of speech to denounce the factory and the Israeli government. They could petition their MPs, and Parliament in general. They could agitate for a change in the law to ban weapons exports. They could openly denounce Judaism and urge its members to convert or abandon the faith. But their own view of the conflict in the Middle East could make – or rather should have made – no difference to their liability for criminal damage. It might be relevant as a mitigating factor in sentencing, in so far as they could be said to be idealistic campaigners rather than wanton vandals or career criminals (though not in so far as the judge happened to agree with their political stance), but it should have been irrelevant to the issue of liability.

Ms Hirsch’s grapeshot approach continues:

"But if religious communities are to have specialist courts, as Lord Carey would want, what about minority-ethnic communities – badly under-represented in the judiciary – women and other groups affected by the various strands of discrimination? Either the legal system is premised on the notion that the court system can function fairly for all, or it ceases to function at all."

“Various strands of discrimination” is a controversial way of putting the judiciary’s lack of diversity, although I agree with her second sentence. It is worth adding something in relation to Sharia courts, which Ms Hirsch mentions at the end of her article, and indeed the Beth Din as referred to by some of the comments below her article.

Separate religious law is something completely inconsistent with the separation of church and state equality before the law. The Beth Din, however – and any Sharia equivalent – is not an example of separate religious law, and this is a common and serious misunderstanding. The Beth Din is not set up or funded by the British state, and its rulings, to the extent they are inconsistent with British law, are of no legal effect. It is in fact an illustration of the English law principle of freedom of contract. Any contract – including one providing for arbitration or other form of alternative dispute resolution – will be enforced by the courts so long as it meets domestic law requirements for a valid contract, including public policy. Thus if two people conclude a contract providing for Jewish law, or some foreign law, or even a previously unheard of set of rules the parties had devised themselves, the courts will do their best to interpret and uphold that contract. To do so involves no importation of the foreign or religious laws; it is simply applying the domestic principle of freedom of contract. So too with the recognition of foreign marriages.

One important caveat remains, however: if a religious system involves principles which would be unlawful here, such as discrimination against women, then the courts will be careful before deciding that the party discriminated against would have freely agreed to subject their dispute to the religious court, and indeed whether to recognise the ruling either way, having regard to public policy. That might be viewed by some as unfair discrimination against the religious group. By others it might be seen as protecting the rights of those discriminated against by that religious group.

The boundaries of recognising controversial or even unlawful practices in the name of freedom of religion, freedom of expression and freedom of contract forms one of the central disputes in liberal philosophy. For rather different reasons, and with rather different solutions, I would agree with Ms Hirsch that this debate isn’t going to go away or become any less heated any time soon.

Friday, 5 November 2010

Assisted Suicide again

I have co-written an article on the above with Lynne Townley which has been published in Criminal Law & Justice Weekly, vol 174 (6 November 2010) p 695.

Monday, 1 November 2010

Still more on religion and the law

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

In previous blogs on religion and the law, I have advocated the following classical liberal position (for which I claim no originality):

"[T]he state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples."

Adopting that straightforward principle would, among other things: not discriminate against any religion, not suppress any religion, give primacy to freedom of expression and the right not to be discriminated against, preclude discrimination in employment and save Byzantine arguments about how to define a religion.

Inevitably, however, a few grey areas remain. If a job is one in a religious institution then it would make little sense to preclude discrimination by the employer on religious grounds. A further problem was highlighted recently by a Christian couple who wished to become foster parents. They were open about the fact that their religious teachings shunned homosexuality. This apparently precluded them from passing the local authority's requirements since those banned any discrimination on the ground of sexual orientation. The couple plans to challenge the decision by way of judicial review in the High Court.

Here the approach I advocated above does not provide a simple answer. Assessing the suitability of people as foster parents is not like a normal job application. Presumably the authority would defend its position on grounds that homosexuality has long been legal in this country, and popular opinion has long moved away from discrimination on the ground of sexual orientation.

Yet there is a serious problem in the authority effectively becoming thought police. Discrimination on sexual grounds based on religion is hardly the only view considered obsolete or otherwise objectionable. Is there to be a spectrum of required political, social and religious views? What if, as the couple in this case appear to be, the candidates seem to be otherwise blameless good citizens? The number of views generally considered objectionable is limited only by the imagination. For example, how would the authority propose to deal with the following:

· Gay people who have openly disparaged practising Christians;

· Adherents of any particular religion who openly disparage non-believers;

· Adherents of any particular religion who openly discriminate against women in various respects;

· Representatives of any internecine ethnic, religious or territorial conflict anywhere in the world who have advocated aiding or abetting combatants,

Any of the above may be encouraging views that are unlawfully discriminatory at the least.

One point is that objectionable or controversial views of parents would not normally render parents unsuitable to the point where social services would be able to intervene and remove the children. That cannot be a complete answer, however, since the test to remove children has never been the same as the test to allow foster parenting and arguably should not be.

The answer, I suggest with a degree of diffidence, has to be that since people are entitled to freedom of worship in the private sphere, and freedom of expression generally, that there is no getting around the fact that parents of every kidney, be they natural, adoptive or foster, are bound to expose children to views which the majority would find unsavoury to say the least. The children will however have to be educated at a state-approved school and via that method at least ought to be made aware of discrimination and the law. Whilst there would be some cases where a parent’s views would be so harmful so as to justify precluding them from fostering children, there has to be a fairly wide mesh.

One parting shot though – the classical liberal view I have been arguing for may well preclude religious schools, on the ground that the state is responsible for education at a primary and tertiary level and is required under the liberal approach to be neutral towards religion. This would be a dramatic change for the United Kingdom, but I would suggest that observers of the Northern Irish troubles for a start would see some empirical justification. But that is an issue for a separate post – indeed many posts.

Post Script: The following comment by one SJH and my response appear below the article on HLE:

Nov 1st, 2010 :

While this does not appear to be an attack on Christianity, the local authority is implying that one viewpoint is correct and the other is wrong, ie Christian views are outdated and must be abandoned. Homosexuality must be accepted by all. To not accept it is prejudice. Let’s say for a moment that the state decided to take the other view: Christianity is correct and homosexuality is wrong – therefore, we shall not allow gay couples to adopt or foster children. Would people also be expected to accept this? The UK is now multi-cultural and we are constantly told to accept a ‘diverse Britain’ – that’s all fine but what does this mean? Will some people have to give up their own opinions and beliefs to make way for new ones coming through? While it’s important that society grows and develops, why must a person be forced to adopt a view or live a way which goes against their beliefs? As for the children – they will grow, change and will be able to form their own opinions. Or maybe by the time these children grow up society will have a whole new set of ‘guidelines’ for us which will discriminate against a whole new set of people, while they desperately attempt to be ‘politically correct’. Discrimination laws are changing and will start to clash – the question is: who will be deciding what is essentially right and what is wrong?

My Response:

The point I was making was that assessing parents for fostering children isn’t really akin to an employment application. In an employment situation, as long as one does what one is contracted to, then one’s private life is no-one’s concern, unless they do something in public outside of the workplace that brings the employer into disrepute.

With potential foster parents, a rather more searching and personal assessment would be appropriate. But does this extend to their political and religious views? Without ruling it out completely (suppose the prospective parents spent their time exercising their right to freedom of expression by calling for ethnic cleansing of some form or another and attempting to form a modern vision of the long defunct British Fascisti), surely the permissible spectrum of views has to be wide indeed. There are any number of reasons for this, including that what the authority thinks is politically correct is likely to change over time, as you point out, and the fact that, like it or not, most people have any number of likes and dislikes, rational and irrational, that might irk some local authority functionary but does not render them unsuitable parents. The children, as you say, will gain their own views over time anyway.

Which brings one to the central question in this particular issue – the needs of the child, which (correctly) in law is the overriding question. In assessing whether it is in the interests of the child to be fostered by any particular household, the parents’ religious and political views are but one factor, and surely absent something fairly extreme not a decisive factor either. Except of course everyone agrees on fairness until it comes to defining it, and similiarly we can all agree on a wide spectrum of views until something is offered as being outside it.

James Wilson Nov 2nd, 2010 :

Thursday, 28 October 2010

Tuesday, 26 October 2010

The shrinking of Fleet Street

A piece written for Lexisweb.

The Fleet Street hack is a long tradition, which may properly be called noble despite its share of ignoble practitioners and conventions. For any number of years journalists have been filling press benches at the courts, column inches in the dailies and glasses in the pubs, as they chronicle the drama, misery and human frailties that every piece of litigation evokes in one form or another.
Unfortunately it seems that that tradition is under threat, according to David Banks in last Tuesday’s Guardian. Mr Banks warns that with fewer local courts to sustain local journalists and, more worryingly, the preference of modern editors for “churnalism” – by which I imagine Mr Banks is referring to the bland non-news produced by the many blood relatives of Private Eye’s Phil Space – the days of reporters sitting patiently through the many boring days and boring cases to find the gems of public interest are fast diminishing.
There are many grounds for concern about this trend. One recalls Lord Hewart’s famous dictum that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. This is the cornerstone of English justice. It is reflected in the rules regarding open courts, the few exceptions to which are always the subject of robust debate. It is the means by which judges – unelected law makers who wield great power – are kept in democratic check. Indeed, it has long been observed that judges are the only public servants who make every single decision in public.
Yet only the tiniest proportion of the general public has the time and the inclination to sit in court observing cases. Almost all who do are only there because they have an interest in the outcome. The rest rely, naturally enough, on the media to inform them of what happens in the courts. It follows that the role of the journalist is one of the highest public importance. Fewer journalists means fewer reports which means a weakening of that vital role.
It is true that not all of what journalists publish about court proceedings concerns important legal developments; they of course want the drama, the gossip and the sleaze. But that cannot detract from the importance of legal journalists. For a start, it is not necessarily a bad thing that anyone who attends court has to accept that they are going to be the object of public scrutiny, whether in respect of trivial matters or otherwise: the market will ultimately decide what the public wants and therefore what the journalists choose to publish. Secondly, and more importantly, the mere presence of a journalist in court ensures a form of watchdog for anything untoward that might happen during the proceedings. Judges who fall asleep, counsel who lose their temper, jurors who behave improperly or any other examples of human failings will quickly supplant the worthless gossip in the journalists’ attention, and be brought to book in the court of public opinion accordingly.
Some countries tightly control the press when it comes to court procedures (usually so they may also control the outcome of the procedures). Others may not have any legal impediments but, due to lack of resources and an equivalent press tradition, have proportionately fewer journalists than this country. None may be envied in this respect. We should be careful in Britain before knocking the fourth estate, however irresponsible it might be on occasion.
I have long been of the opinion that all proceedings in open court should be recorded on video and accessible via the internet, as a means of ensuring open justice. This would partially alleviate the problems caused by diminishing press interest, but that is an argument for another day.
There is a final point, and it is one on which I have to declare a professional interest. The role of reporting law is not that of those variously described as journalists, hacks or court reporters, but of proper law reporters, a different beast altogether. These are lawyers (in the case of the All England Reporter, all qualified barristers and solicitors) employed by legal service providers, who also attend court and report proceedings. In contrast to journalists, however, law reporters are only interested in reporting law and procedure, for online and hard copy law reports rather than newspapers, journals or magazines. They, therefore, are the source of public information about how the law develops. Their role does not overlap or detract from that of the journalists. Their readers are all lawyers or similar professionals, but that is unsurprising and unobjectionable. Law is, after all, a learned profession, as with medicine or any other, and it is only professionals who are in a position properly to understand most developments in precedent – which is not to say that no legal rulings are ever appropriately reported and discussed by the press and public, just that the majority of the output of the courts of record will inevitably only be read by lawyers.
I am pleased to be able to report that law reporters in the form of the All England Reporter are in no danger of diminishing. I am less pleased to have to reiterate that this does not detract from concerns about the declining number of court reporters.

Friday, 15 October 2010

Of courts and quangos

For Halsbury's Law Exchange

At the end of September I blogged about the extraordinary inclusion of the Supreme Court in a list of “quangos” whose future was being considered as part of a general cost-cutting exercise by Central Government.

The list was a leaked document obtained by the BBC and reported widely on its website and by other media. Now the final list has been made public here, and there is no mention of the court at all.

It is therefore a relief to be able to report that the highest court in the land is not considered of a piece with the Government Hospitality Advisory Committee on the Purchase of Wines and other such entities.

Wednesday, 13 October 2010

Assisted suicide again

A short note for HLE's Law in the Headlines. Lynne and I are due to be published in Criminal Law and Justice Weekly on the subject soon

This week the Independent Newspaper reported a further development in the ongoing debate about assisted suicide. It stated:

Doctors and nurses who support assisted suicide for the terminally ill will launch a campaign tomorrow to change the law on the right to die.

Healthcare Professionals for Change (HPC), a group of doctors, nurses and allied health professionals, aims to challenge the views of bodies such as the British Medical Association (BMA) and the Royal College of Physicians (RCP) which oppose such a move.

It is the first professional body to be set up with the explicit aim of changing the 1961 Suicide Act.

Dr Ann McPherson, who is dying of pancreatic cancer, said many doctors believed that patients "should not have to suffer against their wishes at the end of life".

The group's founder went on: "By taking a hostile approach to a change in the law on assisted dying, medical bodies such as the BMA and the Royal College of Physicians are failing to adequately reflect the views of all their members.

"Alongside access to good-quality end-of-life care, we believe that terminally-ill, mentally-competent patients should be able to choose an assisted death, subject to safeguards."

Sarah Wootton, chief executive of Dignity in Dying which backs the group, said: "It's a real move forward.

The issue of assisted suicide is the subject of one of Halsbury’s Law Exchange’s current projects. It has been noted several times as Law in the Headlines (see here for example), and the present instance is unlikely to be the last. Dr McPherson states that medical bodies are “failing to adequately (sic) reflect the views of all their members”, and yet given that there will be diametrically opposing views amongst those members, that is not a criticism that can ever be answered.

The existing state of the law is reviewed by Lynne Townley in the LexisNexis publication Cases that Changed Our Lives (2010), and will be considered further in a forthcoming HLE white paper. The latter will not be short of material.

Friday, 8 October 2010

Religion and the law once more: recognising Druidry

Written for Halsbury's Law Exchange and published here

On 2 October the BBC reported that Druidry is to be recognised as an official religion by the Charities’ Commission. This status has legal implications, in particular for tax purposes. Not all have been happy with the news. In the Daily Mail the conservative commentator Melanie Phillips wrote:

Elevating them to the same status as Christianity is but the latest example of how the bedrock creed of this country is being undermined. More than that, it is an attack upon the very concept of religion itself.

Whether one agrees or not, the report raises once more the issue of religion in public life, unquestionably one of the more intractable problems destined to remain a feature of public debate in this country.

Previously, of course, Christianity ruled the roost as the state religion, as Ms Phillips infers, although as a Jew she might be more cautious about wishing for a return to the past. Mediaeval Christian England severely oppressed Jews before expelling them altogether in 1290 under Edward I by an edict not overturned until 1656. The right to naturalise was not given to Jews until the early 19th century and they were not eligible to sit in the House of Commons until 1859. Ms Phillips has also previously written that the Judeo-Christian theology was responsible for modern ethics and the methods of scientific inquiry, although both claims might have come as a surprise to the ancient Greeks.

Back to the present day, where despite the continuing presence of an established church, the state has attempted to be inclusive of all religions and to recognise them at law accordingly. Two problems exist with that approach: first, how to define “religion”, and secondly, how to reconcile beliefs incompatible with each other and, more importantly, incompatible with the law.

Manifestations of those problems have formed many a headline story, from the dramatic in the form of the Satanic Verses controversy of the late 1980s or the more recent Danish cartoon furore, to the alleged wishes of a schoolgirl to wear a particular item of clothing, employees wishing to be exempt from certain duties, and business owners wishing to exclude their services from certain sections of the public.

Liberal philosophers have long had the following answer: there is no way of the state satisfactorily defining a “religion” (witness the somewhat tortuous efforts of Burton J to do so in Nicholson v Grainger plc [2009] All ER (D) 59 (Nov)). Instead the state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples.

Such an approach should not worry any religious believer; quite the opposite. The United States has a constitutional separation of church and state, as well as freedom of speech, and yet has a higher level of religious observance than the United Kingdom. By contrast, certain theocratic states elsewhere in the world protect only one religion, and not much in the way of freedom of speech or other human rights either.

Tuesday, 5 October 2010

BBC v The Stig again

Published on Halsbury's Law Exchange here.

Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.

As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.

Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.

In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.

As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.

Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.

Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.

Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.

Update: the UK Human Rights Blog has responded to this post here.