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

- Adam Wagner, UK Human Rights Blog

Thursday, 30 September 2010

Cases that Changed Our Lives again

My earlier piece on Cases that Changed Our Lives has now been published on Lexisweb here.

Monday, 27 September 2010

The United Kingdom Supreme Quango?

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

Earlier this year, I was critical of the introduction of the United Kingdom Supreme Court (UKSC). My objections included that the stated reason of greater independence was false, since (a) there was no reason to doubt the independence of the Appellate Committee of the House of Lords, and (b) a body the creation of an ordinary statute always carries the risk or the impression that it can be altered or done away with altogether by another ordinary statute, at the whim of the incumbent government.

Now it seems as though those fears may have come to pass. The UKSC blog reports that the court has been lumped in with a number of quangos whose futures are "still to be decided" as the government struggles to deal with the parlous state of the nation's finances.

Perhaps the inclusion of the court on the list is merely an oversight, but it is not a trifling matter. It would be truly astonishing if anyone in government was contemplating trying to do away with the court altogether and replacing it with a cheaper version, and presumably this is not on the agenda. But it would only be moderately less astonishing if the size of the court was to be reduced or subject to some visible cost cutting measure out of budgetary concerns.

As part of an independent judicial system the funding for the courts has to be seen to be outside the day to day control of the executive; the running of the court is a matter for the court itself. It is ironic that the separation of powers was the primary, indeed about the only, stated reason for its creation in the first place, yet we now find the court listed along with committees under the purview of the Ministry of Justice.

The previous government, with its half-baked reform of the House of Lords, botched attempt at abolition of the office of Lord Chancellor and needless setting up of the UKSC in the first place, did not leave a proud record of stewardship of the constitution. Now some of the unfortunate results are becoming evident: no traditional Lord Chancellor would have permitted the executive to imperil judicial independence by describing the highest (or any other) court as a quango or treating it as being of a piece with the Department of Administrative Affairs of Jim Hacker’s day. The House of Lords of old would certainly have sounded disapproval. And the Appellate Committee of the House of Lords was anything but a financial extravagance.

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

Monday, 20 September 2010

Assisted Suicide

Short piece for Halsbury's Law Exchange, published here

Over the weekend the press reported the death of Michelle Broad, wife of former England cricketer Chris Broad and step-mother to the present England cricketer Stuart Broad. Mrs Broad, a successful businesswoman in her own right, suffered from motor neurone disease, and tragically decided to take her own life. She explained in notes left to her family that she ‘didn’t want to become a burden’.

The story recalled that of two of the most famous cases in English law of the past decade, concerning the terminally ill Diane Pretty and Debbie Purdy, both of whom suffered conditions similar to that of Mrs Broad. Each brought proceedings because they wished to die in circumstances of their own choosing.

Needless to say, the issue of whether someone who wishes to arrange suicide should have those wishes respected gives rise to the strongest reactions and the most difficult of moral issues; and it is one thing to believe that those wishes ought to be respected, but quite another to draft a legal framework to give effect to it.

The present legal framework has been the subject of intense debate and scrutiny due to the Pretty and Purdy cases ([2002] 1 All ER 1 and [2009] 4 All ER 1147 respectively). In an article for a forthcoming LexisNexis publication, Cases that Changed Our Lives, Lynne Townley, a barrister with considerable expertise in the area reviews both cases and observes among other things:

  • The offence of committing or attempting to commit suicide was abolished by s 1 of the Suicide Act 1961;
  • Nevertheless, under s 2(1) it remains an offence to assist or encourage the suicide of another (and see the amendment provided by s 2A, introduced in January 2010);
  • However, a fundamental principle of English law is that the prosecutorial authorities have a discretion whether or not to bring a prosecution in any individual case, even when it seems clear that an offence has been committed, and it has exercised that discretion not to prosecute under s 2(1).
The Crown Prosecution Service has issued guidelines as to when a prosecution is likely to be brought.

  • Factors in favour of a prosecution include where the victim is under 18, or lacks the capacity to reach an informed decision, and where the suspect is not wholly motivated by compassion.
  • Factors tending against prosecution include where the victim has reached a voluntary, clear, settled and informed decision, and the suspect was motivated wholly by compassion.
Inevitably, however, as Ms Townley goes on to show, whatever the law says will never foreclose the moral debate.

Friday, 17 September 2010

Cases that changed our lives

Another piece on Cases that Changed Our Lives, which is now available for purchase here. The chapter intros are reproduced here. UPDATE: This piece is now published here.

Cases that Changed Our Lives is a new collection of essays from LexisNexis on great cases in the common law, written by a team of leading authors, practitioners and judges. The book was conceived as part of LexisNexis’ commitment to the rule of law, a central component of which is the ongoing and open study of landmark cases which, by the system of precedent, govern all our lives. It is being launched at the IBA Conference in Vancouver in October 2010.

Compiling and editing the book was a challenge, if an intellectually stimulating and rewarding one. The main problem was in deciding what cases to include – which quickly became the rather more tricky question of which cases to leave out. As a starting point we coined a list of “law student classics”: the likes of Factortame, Wednesbury, Donaghue v Stevenson, M’Naghten, Dudley & Stephens, which any lawyer will instantly recognise, to the extent that the full names and citations are hardly necessary. Then followed what one might call the “second XI”, cases almost as well known: Tulk v Moxhay, High Trees, Caparo v Dickman, Mareva and Gillick.

Even that classification would hardly be uncontroversial. There can never be a definitive answer as to whether a great criminal case such as M’Naghten – which framed the rules for insanity in the context of criminal law for over a century and a half – is more “important” than great civil cases, such as Mareva - which established one of the most fundamental weapons in the commercial litigator’s armoury. As it happens we have included both of those, but one can see the sort of dilemma with which we were faced.

To assist in making the choice we looked for two things: first, cases with great moral dilemmas at their centre. R v Dudley and Stephens, the classic case of stranded sailors resorting to cannibalism at the expense of the cabin boy, is perhaps the best example. Secondly, we wanted to find cases with an interesting human angle. Almost everyone has heard of the M’Naghten rules, but perhaps not so many know of the intriguing conspiracy theory underlying the case – why M’Naghten shot who he did, who he thought the victim actually was, and whether he was being paid to do it.

We were also pleased to include a case less well remembered – the trial of Dr Sacheverell – which can properly be described as one of the great state trials in English history. Another round of the Whig v Tory battles which form a central part of the fabric of English constitutional history, the case brought down a government and gave rise to the Riot Act of common parlance.

As well as the classic cases we wanted to include a few cases of more recent vintage. There have been many of late that have kept headline writers in work – indeed, the tabloid press itself was the very reason for Naomi Campbell’s privacy litigation. Not all high profile cases involve new law, obviously enough, so the first task was selecting those that did. As a further refinement we again looked for cases with a strong moral dispute at their core. Of these the cases on the right to life – the duty of the state to protect those in its care, and the opposing right to end one’s life in a manner of one’s choosing – were the most obvious. Thus we have included the case of the death in custody of the convicted murderer Colin Middleton and, as the sharpest contrast, the attempts by the tragically ill Diane Pretty and Debbie Purdy to ensure they could end their lives as they wished.

As a separate section we look at the responses of the state to international terror in the twenty-first century. Predictably the great challenge to the state is how to reconcile traditional notions of liberty, the presumption of innocence, open justice and the right to know the case against oneself with the threat of another attack of the scale of the September 11 atrocities in the United States. Whether the old maxim of it being better to allow ten guilty men to walk free than one innocent man to be imprisoned can really bear scrutiny if those ten men (or even one of them) then commits murder of several hundred, or even thousands, of innocent people is one of the great challenges to the law in the present day.

In the same vein is the extraordinary saga which became the Corner House litigation. Legally the case changed little: it was decided under the old regime of bribery law, and involved the exercise of an undoubted discretion by the prosecutorial authorities. Underlying the legal issues, however, was the extremely disturbing reality that an apparently closely allied state had made a naked threat to the lives of British citizens, for no more than thirty pieces of silver. The startling nature of that threat enraged the Divisional Court, but aside from a heavy sigh or two from some of the more outspoken judges, it elicited an almost diffident brushing aside by the House of Lords, who simply said the prosecutors had had no choice.

Looking beyond English shores we have four cases showing the common law in action in the United States and Australia. With respect to the United States we chose a key constitutional case – that of Marbury v Madison – which established a vital aspect of the system of government, the ability of the Supreme Court to strike down unconstitutional legislation. In reaching that case the Court followed a line of reasoning originating in England, where a failed attempt to establish the same principle was made in the very first case of the book, Dr Bonham’s Case. So much for the idea that the Seventeenth Century cases established nothing due to it all being blood and iron in those days. We then picked out a case that certainly changed lives – much for the worse. Plessy v Ferguson was one of the disgraceful “separate but equal” decisions that kept open old Civil War wounds until the civil rights movement of the 1960s, and arguably has left lingering damage still felt in the present day. The Australian cases provide an interesting counterpoint: a similar power to find legislation unconstitutional was established in a series of decisions in the late twentieth century, although not without some controversy, and the landmark case of Mabo was seen as a great step towards minority rights in contradistinction to the oppressive boot of Plessy in the United States.

Having chosen the cases, they seemed to fall quite naturally into different groupings: public law, land law, criminal law, civil law, family law, the right to life and terrorism in the twenty-first century.

No doubt we have now said enough to show that it was inevitable that whatever list we came up with would contain omissions that other readers would instantly seize upon. And equally someone will probably object that there were more logical groupings for the chapters. We expect – and welcome the fact – that they will do so. Our response to such anticipated criticism is threefold. First, no-one is ever going to agree on the final list, not for a book of manageable proportions anyway. Secondly, there is always volume II! (and possibly III, IV and V, and potentially L and beyond ...). Finally, if by making the “wrong” choices we have at least managed to provoke debate about the relative importance of famous cases and therefore the workings of the law, then we will have achieved what we set out to do.

Here then are the 24 cases which made the cut:

I. Public law

Changing Perspectives on the Constitution and the Courts: Dr Bonham’s Case -- Andrew Goddard QC and Marie-Thérèse Groarke

What breathes life into the US Constitution? Marbury v Madison -- Kenneth Thompson II

Associated Provincial Picture Houses Ltd v Wednesbury Corpn -- Jennifer James

The Factortame Litigation -- Dr Jo Hunt

An implied constitutional freedom of speech in Australia: Theophanous v The Herald and Weekly Times Limited – The Hon Dr Kevin Lindgren QC

A right to resist? The Trial of Dr Sacheverell -- Dr Craig Rose

“The evil that men do lives after them”: Plessy v Ferguson -- Henry Horbaczewski

Native title in Australia: Mabo and Another v The State of Queensland and Another -- The Hon Dr Kevin Lindgren QC

II. Land law

Tulk v Moxhay -- Richard de Lacy QC

A promise is a promise: Central London Property Trust Ltd v High Trees House Ltd -- Robert Pearce QC

III. Criminal law

Legal insanity: the enduring legacy of Daniel M’Naghten’s Case -- Jeremy Dein QC and Jo Sidhu

Death on the High Seas: The Cabin Boy, the Cannibals and the Criminal Law: R v Dudley and Stephens -- David Perry QC

Red light spells danger: R v Morgan -- Gerard Forlin QC

IV. Civil law

The Snail in the bottle: Donoghue (or McAlister) v Stevenson -- Paul Reed QC and Philippa Harris

Legal celebrity or jurisprudential substance? Caparo Industries plc v Dickman and other -- John Randall QC

As if by a side-wind … The Mareva/Freezing Order Jurisdiction in England: Mareva Compania Naviera SA v International Bulkcarriers SA; The Mareva -- Paul Lowenstein QC

From catwalk to courtroom: public figure, private life: Naomi Campbell v MGN Limited -- Heather Rogers QC

V. The right to life

“How … the deceased came by his death …”: R (on the application of Middleton) v West Somerset Coroner – Dr Karen Widdicombe

R (on the application of Purdy) v Director of Public Prosecutions How the Law Lords Made Way for a Compassionate Clarification of the Law on Assisting Suicide -- Lynne Townley

VI. The state and terrorism in the twenty-first century

A and others v Secretary of State for the Home Department: The Courts and counter-terrorism – asserting the rule of law? -- Alexander Horne

The day we sold the rule of law: R (on the application of Corner House Research and another) v Director of Serious Fraud Office (BAE Systems plc, interested party) -- John Cooper QC

VII. Family law

Is it that simple? Stack v Dowden and buying a house together. – His Honour Judge Stephen Wildblood QC

An ordinary tale of farming folk? White v White and its legacy -- Janet Bazley QC and Stephen Jarmain

Gillick and the dwindling right of parental authority -- Janet Bazley QC and Stephen Jarmain

Tuesday, 14 September 2010

Lord Bingham of Cornhill

An obituary written for Halsbury's Law Exchange

Lord Bingham of Cornhill, called by the press “one of the outstanding English judges of the 20th century” and “the greatest judge of our era”, has died aged 76.

He was the first judge in history to hold all three posts of Master of the Rolls, Lord Chief Justice and senior Law Lord.

His career in the law was marked with distinction throughout. After finishing top in his Bar exams in 1959 he was called by Gray’s Inn. He took silk in 1972, aged just 38, and was appointed a Recorder of the Crown Court in 1975. In 1977 he headed the inquiry into alleged breaches of UN sanctions against Rhodesia.

In 1980 he became a judge of the Queen’s Bench Division, and was elevated to the Court of Appeal in 1986. Whilst on the Court of Appeal he was appointed to head a second major public inquiry, into the collapse of the failed bank BCCI.

He became Master of the Rolls in 1992 and Lord Chief Justice in 1996, before being appointed senior Law Lord in 2000. Neither of the second two changes of role was entirely without controversy: he had lacked any significant criminal experience before becoming Lord Chief Justice (a post many at the time thought should have gone to Lord Justice Rose), and he was the first person to be appointed senior Law Lord, a post which previously had always been held simply by the longest serving Law Lord. Lord Bingham, however, always dismissed any suggestion that the latter appointment had been to put their Lordships’ house in order.

As senior Law Lord he criticised the form of modern judgments for their “length, complexity and sometimes prolixity”, arguing that

whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio.

He was not, however, able to effect any substantive reform in that respect: throughout his tenure and to the present day the House of Lords, and now the Supreme Court, has not as a consistent practice handed down judgments with one clear majority ratio, despite the lack of any apparent barrier to doing so.

Lord Bingham became known as a liberal judge, through his support for the introduction of the Human Rights Act 1998, and his subsequent judgments in a number of high profile cases concerning the legality of the anti-terrorist measures introduced by the government following the September 11 attacks on the United States (see eg A and others v Secretary of State for the Home Department [2005] 3 All ER 169). He also supported the establishment of the international criminal court, a not uncontroversial move which some found akin to putting the cart before the horse, given that a universally agreed international criminal legal code was lacking. When asked if he was a liberal, however, his dry response was that one would not wish to be known as illiberal. He also described the value of liberty as being of “immense importance.”

Following his retirement in 2008 he was more openly controversial, declaring that the Attorney-General’s advice to the Prime Minister on the legality of the invasion of Iraq had been wrong (he used the measured term “flawed”) because (i) the evidence that Iraq had failed to comply with UN sanctions was insufficient; and (ii) it was for the entire Security Council to make the decision (on which see however Stephen Hockman QC’s HLE blog here). He also published a book entitled The Rule of Law, which was well received. In one highly positive review the Guardian called him “one of our greatest crusading judges”.

Lord Bingham died on 11 September 2010.

Wednesday, 8 September 2010

Getting away with murder

Something shortly to appear on Halsbury's Law Exchange

More than 40 years ago the then Labour MP Leslie Hale spoke in the House of Commons of “the constitution of the nation, the liberties of the people and a system of justice that, with all its faults, is the envy of the world.”

Today that sort of patriotic endorsement of English law is not so easily found amongst the great and the good. Instead there seems to be a perpetual fear that others might do things better than us, and so must be aped wherever possible.

Latest in this line of followers rather than leaders is the DPP, Kier Starmer. According to this morning’s Telegraph, he has joined with Ken Clarke, the Justice Secretary, in support of a Law Commission report arguing that we should redefine the most important of all criminal acts – murder.

Mr Starmer et al think that the offence might be better rewritten along American lines, so that rather than murder and manslaughter, we would have the first and second degree classifications of murder familiar to all viewers of American cops and robbers’ television programmes.

No doubt the Law Commission’s study was of the appropriate standard of erudition and its recommendations entirely earnest and well-meaning. But there is – or should be – a prior question asked by every prospective law reformer of every prospective law reform, namely is the reform actually necessary?

To sweep aside a definition of murder that is many generations old and replace it with something different is not a step to be taken lightly. It is a dimly narrow view of the law that sees criminal justice as nothing more than a set of rules to be tinkered with as and how the government of the day chooses.

Murder is not simply another offence in another statute or another set of common law rules. It is a concept with the highest resonance giving rise to the highest passion amongst the general public, even if it is inevitably imperfectly understood by them. Changing the definition to that of another culture isn’t something akin to tidying up the degree of knowledge required for liability as a constructive trustee or revising directors’ duties.

Politicians like to leave their mark on society, but that in itself is the worst possible motivation for a change in the law.

There is a second prior question – whether the proposed change is of sufficient importance that it should go to the top of the list of what public funds and other resources ought to be expended upon. It seems improbable that the proposed murder reform would pass that test; the present system allows for considerable flexibility in the form of sentencing and it is therefore far from clear that there is a pressing need for reform in that respect.

It wouldn’t have been a surprise to find the previous government cheerfully junking an age-old legal concept and replacing it with another of its personal fancy, especially not in the field of crime. In 1948, 700 pages in Halsbury’s Statutes were taken up with the criminal law. By 1998 that figure had risen to 2,700. Then the government gathered a proper head of steam, hitting 4,700 pages by 2008 and at the end of their tenure in 2010 nearly managing to hike it to 6,000.

That sort of increase is totally inconsistent with the rule of law, which requires the law to be stable and knowable in advance. It would take a fairly dedicated criminal practitioner to keep on top of all those new provisions and all relevant cases which have considered them. Worse still, the quality of some of the legislative reforms was, to say the least, less than satisfactory. The highest court in the land had this to say about one example:

"The road to hell is paved with good intentions. In this case the good intentions were to introduce mandatory rehabilitation for very short term prisoners by coupling time spent in custody with a release period under licence. This was known as “custody plus”. Hell is a fair description of the problem of statutory interpretation caused by transitional provisions introduced when custody plus had to be put on hold because the resources needed to implement the scheme did not exist. The problem arises when sentences of less than 12 months and more than 12 months are imposed consecutively."

R (on the application of Noone) v The Governor of HMP Drake Hall and another [2010] UKSC 30 at para [1] per Lord Phillips.

One would have thought that after that deluge the present government might have seen fit to take a breath. Or maybe they surveyed the wreckage and decided that maybe there wasn’t so much to be proud of anymore, and that others really did do things better elsewhere.

Phone Hacking

Another "Law in the Headlines" post for Halsbury's Law Exchange, published here.

The issue of alleged phone tapping of various public figures has once again been occupying much space in the press. The former royal editor of the News of the World, Clive Goodman, and a co-conspirator, Glenn Mulcaire, were jailed in January 2007 for four months and six months respectively, after pleading guilty to conspiracy to intercept communications without lawful authority. The newspaper’s editor at the time, Andy Coulson, accepted responsibility and resigned. Mr Coulson is now Director of Communications for the Conservative Party.

The Guardian newspaper made further allegations in 2009 of phone tapping, leading to investigations by the Press Complaints Commission and the House of Commons Culture and Media Committee.

Obviously there is vehement disagreement on what (if anything) was done, when it was done and by whom it was done. Equally obviously it is not the place on this forum to speculate on the truth of any of the allegations. It is however possible to state the underlying legal points quite shortly.

The primary legal issue is whether or not a criminal offence has been committed. The relevant offence would be pursuant to s 1(1) of the Regulation of Investigatory Powers Act 2000, which provides:

1 Unlawful interception

(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at
any place in the United Kingdom, any communication in the course of its transmission by means
(a) a public postal service; or
(b) a public telecommunication system.
(2) It shall be an offence for a person—
(a) intentionally and without lawful authority, and
(b) otherwise than in circumstances in which his conduct is excluded by subsection (6)
from criminal liability under this subsection,
to intercept, at any place in the United Kingdom, any communication in the course of its
transmission by means of a private telecommunication system.

The penalty for infringement is a prison sentence of up to two years for conviction on an indictment, or a fine not exceeding the statutory maximum if it is a summary conviction (s 1(7)).

Section 1(3) also provides that any interception of a communication without lawful authority is actionable at the suit or instance of the sender or recipient, or intended recipient.

These are not light consequences, as the previous sentences (which involved earlier legislation as well) demonstrate.

There is a further potential issue. Rumours are being made that apparently some people whose communications were intercepted have had their silence bought. Much depends on the precise circumstances (and again, it cannot be emphasised too strongly that nothing is offered here on the truth of any allegations or rumours) but any such deal where a criminal offence might be involved runs the risk of a charge of perverting the course of justice, an offence with a very wide scope both as to its commission and penalty.