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

- Adam Wagner, UK Human Rights Blog

Tuesday, 31 May 2011

Injunction-breakers v privacy-brokers: the fight for free speech

Published in Halsbury's Law Exchange here.

When writing about superinjunctions in April, I offered the observation (for which I claim no originality or great insight) that the internet might well render the law of privacy unenforceable. Needless to say, something close to that situation has since come to pass, and there has been much discussion on the legal blogosphere on the subject.

I must admit to some mixed feelings about the injunction saga. Deliberately flouting court orders, whether it be by private citizens using the internet or by attention-seeking MPs invoking Parliamentary privilege, is seriously damaging to the rule of law. Spreading rumours about injunctions without even knowing if they are true or not (or perhaps deliberately in the knowledge that they are false) is also reprehensible behaviour by any measure.

In a country where political speech at least remains free, the internet-wielding private citizens ought to be campaigning for a change in the law if they happen to disagree with it, not deliberately undermining it. MPs as lawmakers have even less excuse.

One argument doing the rounds of the popular press has it that privacy laws are exclusively judge-made, and are somehow less defensible as a result.

In response I would say, first, that present privacy laws derive from art 8 of the European Convention on Human Rights which, needless to say, was brought into UK law by an Act of Parliament, so all the law-making has been done against that background. Moreover, Strasbourg was already some way down the line of current art 8 jurisprudence, so it is fair to say we were warned. But whether the present law of privacy is judge-made or not is beside the point: the law is still the law, and if it is deliberately flouted via the internet or Parliamentary privilege the rule of law is undermined.

Secondly, even if Parliament were to pass legislation on the subject, it would have the same enforcement problems as the courts for the same reasons – it would be largely unenforceable against overseas bloggers and tweeters, and MPs relying on art 9 of the 1689 Bill of Rights (although presumably the latter might be a little more restrained in their use of Parliamentary privilege if they thought that privacy laws carried Parliament’s approbation). Moreover, in passing any legislation Parliament would be constrained to act within the margin of appreciation afforded by Strasbourg.

Leaving aside the practical difficulties, it does seem to me that in balancing privacy with freedom of expression too much weight has been given to the former. I do think it would be wrong to allow publication of photographs or video footage of someone’s private activities, and for that reason the courts reached the right decision in the Mosley case. But I remain unconvinced that that degree of privacy should extend to suppress a textual report of the fact of someone committing adultery.

Injunctions are serious matters: any breach may result in a sentence of imprisonment. The usual ground advanced in their support is that children of the injunction-seeker should be protected. Yet murderers and rapists do not qualify for name suppression even if they have children, so the argument that adulterers should is on flimsy grounds. The criminal law is the state’s ultimate weapon against its own citizens and it should be used sparingly. Tell-tales and gossip-mongers are generally not admirable people but that should not render them criminals, which is what injunction-breakers will become. Moreover, the courts are a scarce, expensive and overworked public resource and there are many more deserving litigants waiting to have their cases heard than embarrassed footballers and other b-list celebrities.

I suspect self regulation, for the mainstream media and for news and legal bloggers who wish to be taken seriously, will be more effective. The courts should be used to award damages against those who impinge privacy in cases such as Mosley’s. The distinction between breaches which do warrant the law’s intervention (such as Mosley’s) and those which do not (straightforward kiss and tell tittle-tattle) would have to be worked out on a case-by-case basis – even if Parliament did legislate on the subject, for then there would be litigation on the interpretation of that legislation. A starting point might be to consider the US law on the subject, whereby those deemed to be public figures rarely stand a chance of suppressing the freedom of the press.

Those who do not like what has been said about them should either sue for defamation – if the statement wasn’t true – or maintain what used to be called a dignified silence. Or, dare one even suggest it, not give the tabloids ammunition in the first place …

Coda: for further reading this morning’s roundup on the UKHR Blog is a good place to start.

Monday, 23 May 2011

The need for journalists to attend court

Shortened version published in Halsbury's Law Exchange here.

Adam Wagner of the UK Human Rights Blog has written about the controversy surrounding Christopher Booker’s reporting of a family law case. Booker’s original article gave rise to much comment for and against, including a response by the court itself. Booker himself then dispatched some thunderbolts back, and Wagner has responded in turn albeit in a somewhat more measured tone.

I do not wish to pass any comment on the actual case which Booker’s original article concerned, since I have not read about it in any detail. He may be wholly right, wholly wrong or something in between. Instead, I wish to comment on the general point of interest in Wagner’s original article, namely whether it is necessary in order to report proceedings for a reporter actually to be present in court during the hearing before commenting on a particular case.

The answer, inevitably, is that “it depends”. If a journalist is simply reporting the ruling in the case, then a properly written judgment should be able to be understood (by an appropriately qualified person) without reference to any other documents, let alone the hearing itself.

If on the other hand a reporter wishes to comment on any findings of fact, then they would be in a much stronger position if they attended the hearing and observed the witnesses – for precisely the same reasons that the Court of Appeal is unwilling to overturn first instance findings of fact.

If a reporter is unable to attend, or only becomes aware of the story after the event, then, as Wagner points out, it is usually possible to obtain transcripts and other records. Though an imperfect record (a witness”s demeanour can say as much as their words) such documents would certainly put the reporter in a stronger position than merely conducting a rehearing of their own with the disappointed party, which is the nub of much of the criticism that has been levelled at Booker.

It cannot therefore be seriously disputed that reporters will gain a much better picture of findings of fact by attending hearings. Again, as Wagner states, there are nothing like the impediments to doing so that Booker seems to imagine – the rule of open justice is one of the most fundamental in the common law. In 1913 the House of Lords stated that: “In public trial is to be found on the whole the best security for the pure, impartial, and efficient administration of justice, and the best means of winning for it public confidence and respect” (Scott v Scott [1911-13] All ER Rep 1). Nowadays that rule is bolstered by the fair trial requirements of art 6 of the European Convention on Human Rights, though given how well entrenched it already was in the common law, I doubt there has been any practical difference.

Of course, Booker would respond that the family courts are not sufficiently open to the public. But they are much more open than before, and the press can usually challenge a ruling about a case or particular evidence being heard in private.

Wagner observes that journalists attending court will have to sit through multiple delays and many days of boring, irrelevant material. This is true, although at least nowadays with modern communication devices they have less of an excuse not to be doing something worthwhile while they sit there. Nevertheless, Wagner cautions that they may be tempted to sex up stories to justify the time committed.

Here I am reminded of Robert Winder's superb travelogue of a cricket correspondent, Hell For Leather: a modern cricket journey, where he describes his experiences on the subcontinent covering the 1996 World Cup. The goal of all the hacks was to secure a headline. The goal of the players and management was to prevent them from doing so. Therefore at every press conference they would stoically meet every question with an answer as bland as an in-flight menu. This presented no problem to the hacks, however, who were well practiced in the art of turning a side remark about a player recovering from a minor injury into a screaming headline about a player getting slammed by the coach for being ill-prepared.

The problem facing the hacks, however, was that if they missed a “story” being run by one of their rivals, they would receive an angry call from their editor demanding some equivalent copy, and given the time difference in the subcontinent the call would usually come in the middle of the night. The more experienced hacks wistfully recalled tours to the West Indies, where the time difference and the now ancient state of the technology meant that nothing could be altered beyond 6pm local time, leaving the hacks to while away the hours by the hotel pool free from any inconvenient work-related interruptions.

Ever ingenious, the solution of the hacks on Winder's tour was to band together and agree amongst themselves what the story of the day was to be, and then simply compose their own variations on the theme. It meant fewer scoops but much better sleep.

Perhaps court reporters might be tempted into the same thing, though in my experience court reporters are a diligent group who of course make mistakes on occasion (like everyone else) but by and large aim for accuracy even if they choose to emphasise an aspect of the case that lawyers would consider trivial or irrelevant. But the short answer to improper journalism is better editorial standards, not less journalism, and one should not discourage journalists from covering hearings – or anything else – because of a risk that they might get bored and invent something to justify their time.

It is, therefore, a cause for regret that fewer journalists may be found in court nowadays, all the more so if it is simply because they don’t feel it worth the effort. The rule of open justice exists for a reason – justice has to be seen to be done. The presence in court of journalists is a tangible contribution in this respect. Further, as I have written before: “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 … be brought to book in the court of public opinion accordingly.”

Friday, 20 May 2011

The future of legal blogging

Published on Halsbury's Law Exchange here.

Last night 1 Crown Office Row hosted an event at the Law Society on the future of legal blogging. I must at the outset thank the organisers both for the high standard of speakers and for the hospitality, although the excellence of the latter may, I fear, have adversely affected my memory of the former.

Blogging is an activity which could be tailor-made for lawyers, who almost by definition are people who enjoy both the English language and the activity of getting on soapboxes.. In fact, the only real surprise about legal blogging is that there isn’t more of it, but then I suppose lawyers also enjoy making money, and blogs tend not to do that.

One of the first questions put to the panel was whether legal blogging is an example of the old philosophical conundrum of a tree falling in the forest where there is no-one to hear it: is it making any sound, or merely a vibration?

To my mind, the answer is that while there are no doubt many individual blogs with no readership beyond the individual author, legal blogging as a whole is indeed making some tangible noise. An example was given last night of the Simon Singh libel case. Dr Singh had close support from some bloggers, and the case as a whole received some attendant publicity. I would observe that the blogs would have had no effect on the actual outcome of the litigation, although attention drawn to the preposterous nature of the claimant’s action – which constituted a blight on free speech, a blow to consumer information and a retardant to scientific advancement – has to be a good thing.

The more general point made was that blogs provide legal information and dissemination in a format that is free, easily found and, in the case of the better-written, more understandable than traditional sources of legal information. They also serve as a forum for public debate.

One intriguing aspect of the blogosphere is that it is something close to a perfect free market in ideas – there are few barriers to entry for suppliers, almost no cost to consumers and, whilst there is some regulation of UK-based bloggers, the nature of the internet is such that almost any regulation might be rendered ineffective, as I wrote about in the context of superinjunctions.

The last of those points poses some serious issues for bloggers. No doubt there was a certain amount of schadenfreude when Fred Goodwin’s injunction was effectively defeated by a combination of the very old in the form of the protection of free speech in Parliament guaranteed by Art 9 of the 1689 Bill of Rights, and the very new in the form of the effective invulnerability of overseas bloggers (some of whom likened Goodwin’s attempts to preserve his public image to Mr Guggenheim putting on his dinner jacket to go down with the ship, though with the opposite of Guggenheim’s gentlemanly and heroic connotations). Yet readers will need no reminding of the severe injustice that scurrilous information might cause – mistrials in serious criminal cases, or career-ending defamation, for a start – which even the most ardent free speech advocates would regret. It is fair to say, therefore, that the future of injunctions contempt of court, open justice and confidential information in the Twitter age has yet to be decided (see here for Lord Neuberger’s report on super-injunctions, published this morning).

An interesting discussion also took place on what will happen to traditional journalism in the face of legions of blogs. It was pointed out that online journalists enjoy freedom from the rigid word counts and publishing delays which print publications necessarily involve. They also have the ability to correct errors in the original copy and can insert necessary links (links being stressed last night as an essential tool for substantiating arguments and providing further reading – clear benefits over print journalism).

The consensus seemed to be that, whilst the benefits of near-instantaneous tweets of news and comment are undoubted, there will always be a place for more considered analysis by professional journalists and commentators a few days after the event. Inevitably, however, the presence of high quality free comment on legal affairs on the blogosphere will affect the value of legal journalism in monetary terms.

The hope was expressed that a meritocratic system would separate blogging wheat from chaff. Inevitably the most popular bloggers – as in most walks of life – will not necessarily be the best in terms of quality; but I would imagine that good blogs would become known within short order.

I would agree that the marketplace of ideas will be an effective regulator of legal blogs. Existing professional duties will be an effective restraint on blogs written by practising lawyers. For most of the mainstream media, the Press Complaints Commission jurisdiction now extends to blogs. Perhaps other bloggers will in time form voluntary codes of conduct of a similar nature, as a way of adding some authority or otherwise assuring readers.

Legal blogging, whatever its flaws, ensures more debate about the rules that govern us, and keeps better scrutiny on those who make and enforce them. Having more of those benefits seems a pretty good thing for the future.

Tuesday, 17 May 2011

What cases should the Supreme Court hear?

Published in Halsbury's Law Exchange here

During research for my previous post on the Supreme Court, the question arose as to what sort of cases the court should hear. Some authors have been of the view that the court should fashion itself as a constitutional court, rather than continue as a general appeal court. Most notably, Baroness Hale is reported as saying that the court should eschew “big money shipping cases” which she argues are “important only to the parties and their insurers" (quoted here @ p26). A change in that direction would mirror the experience of the Canadian Supreme Court, which over the past 25 years has gravitated towards public law cases (see Hazell, Robert, The Continuing Dynamism of Constitutional Reform (January 2007), Parliamentary Affairs, Vol. 60, Issue 1, pp. 3-25, 2007 @ p17).

As noted in my previous post, there has been a substantial increase in constitutional and administrative litigation in the past half century, particularly since the coming into force of the Human Rights Act 1998. The more cynical attribute this trend to an overregulated society, an economic climate in which the state is seen as one of the few defendants worth suing (the yet more cynical dispute the validity of this assumption, with reference to the national debt), and the opportunities presented by the 1998 Act (“cynical” probably not being sufficient to describe some of the detractors thereof).

With the greatest respect to Baroness Hale, however, I would maintain that the Supreme Court should remain a general appeal court.

It should be uncontroversial to observe that Britain can only afford its vast state apparatus and world-leading standards of human rights because of the money generated by the City. That money is generated because international businessmen and women choose to do business here. They do so because of two primary reasons: first, the commercial expertise; and secondly, the regulatory regime.

Central to the second of those reasons is the dispute resolution mechanism, which in London is composed of the well-known arbitral tribunals as well as the court system. No one would choose to do business in a country which failed to adhere to the rule of law, or otherwise had an untrustworthy judicial system (unless I suppose one was tempted by the availability of minerals or other raw materials, which is not the case in London).

At the apex of the London dispute resolution and judicial tier sits the Supreme Court, which has a significant role as the ultimate guarantor of the correctness of the legal process, even if the guarantee is only rarely called upon.

In an important recent analysis Carnwarth LJ estimated that legal services amounted to £3b in foreign earnings in 2007, and pointed to the increasing number of international dispute resolution centres.* But a greater (if less easily quantified) sum would be earned on transactions which take place in London because of the regulatory framework as already mentioned.

It would also be incorrect to assume (nb - I am not imputing this assumption to Baroness Hale) that all "big money" commercial cases are irrelevant to the average consumer. The bank charges case (Office of Fair Trading v Abbey National plc and others [2010] 1 All ER 667) is a good example, and one can imagine test cases along similar lines in many other areas of consumer law. Or one thinks of Equitable Life Assurance Society v Hyman [2000] 3 All ER 961 - a classic Chancery Division dispute, but one upon which many thousands of ordinary people's savings turned. I do not see any compelling reason why the Supreme Court should not continue to hear such cases. In fact I would maintain the opposite: public confidence in the outcome of important cases will be much higher if they are resolved by thorough examination from the highest court in the land.

Accordingly, rather than seeking to confine itself to public law cases (either formally by a statutory restriction on its jurisdiction or informally by the exercise of its discretion to grant permission to appeal), the Supreme Court should continue as a general court of appeal. Or, to invoke one of the Court of Appeal's stock phrases, their lordships should dine a la carte rather than from a set menu. In considering whether to grant permission to appeal, the court should take a broad - that is to say, commercially aware - view of what constitutes public importance.

* As an aside, I would note that the importance of the Admiralty and Commercial Court renders it something of an embarrassment to the nation that for so many years it has had to be housed in such inadequate facilities as St Dunstan's House on Fetter Lane. A new building is under construction, which sensibly will also house the Technology and Construction Court (also lumped in St Dunstan's at present) and the Chancery Division (presently housed in the not much superior Thomas More Building within the Royal Courts of Justice on the Strand). This new building, Rolls House, will have much superior facilities, although it will still lack any character. During the Admiralty Court's ceremony marking the 200th anniversary of Trafalgar, it was noted that if the French had won then at least the anniversary event would be taking place in a decent venue. I wonder if it is too much to hope an edifice of suitable gravitas might be built in time for the 300th anniversary. At any rate, the absence of suitable premises for the Commercial Court was another reason why it was folly to be spending £30m on the Supreme Court building first, though obviously that argument along with the money has long been spent.

Wednesday, 11 May 2011

Supreme Court appointments again

Published in Halsbury's Law Exchange here.

Last month I wrote about the controversy concerning the appointment of Jonathan Sumption QC to the Supreme Court. Since then Daniel Finkelstein in the Times has argued that the appointments process needs a fundamental alteration. He argues that since judges now inevitably involve themselves in political law making, they need greater democratic legitimacy. He advocates a version of the United States’ confirmation hearings, under which candidates nominated by the President undergo a searching examination in front of the Senate to elicit their political and personal opinions.

No one in modern times buys the old line about judges applying but never making law. Jonathan Swift did not even buy it in 1726. It is inevitable that judges are in the business of making and shaping the rules which govern us, as they have always and inevitably done.

Of course, they do not have an entirely free hand; the more outlandish claims of the "realist" school of jurisprudence are just as unrealistic as the old formalist myth about the law always being predetermined.

What has changed in recent times (that is, since the Second World War) is the extent to which the courts have been supervising the executive (administrative law) and, particularly since the Human Rights Act 1998 came into force, the extent to which they will entertain new causes of action against the state. That greater involvement in the business of government seems to underpin most calls for more democratic legitimacy for the bench.

In response I would argue that it is still not correct to say that the judges have assumed the role of unelected politicians. Even where a case raises questions of policy, the court is not in a position of a political party attempting to implement a manifesto, but rather assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of its own case law and that of Strasbourg.

Finkelstein gives the example of privacy laws. These, he observes, have largely been developed by the judges and therefore Sumption should be examined to elicit his views on them. It is not clear why this should be so. If Parliament does not like judicially developed privacy law then it should legislate to change it, not appoint judges who it hopes will have different views. The latter course would be impracticable in any event, since Parliament might find candidates with whom it agrees on privacy law but disagrees on other important issues. It would also be inefficient: since only one or two vacancies tend to arise at the same time, it could be years before the majority of the bench is reconstituted according to Parliament’s sympathies (and years more before a case is appealed on any particular issue to the Supreme Court). During that time a new government might be elected which thinks the opposite to its predecessor. Would the “democratic legitimacy” of the court then be undermined? Moreover, judges might change their views after being appointed, as indeed American Supreme Court justices have been known to do.

One other problem with the US model is that the expectation about political leanings occasionally detracts from the court’s appearance of objectivity. The most striking example in recent times was when the court had to decide issues concerning the outcome of the Presidential election in 2000, and it did so by a decision split precisely on party lines.

All that said, I would not argue that Parliament should have no involvement whatever in the appointments process. The appearance of legitimacy needs to be preserved. Or, to put it another way, justice needs to be seen to be done. The old system of secret soundings followed by the Lord Chancellor’s announcement was the antithesis of public justice, however well it actually worked in practice. The leg work for choosing suitable candidates should be that of the profession and the executive, but the last say between those candidates should be that of Parliament.

Rather than “Borking” Supreme Court candidates in the American style to elicit their views on contentious political and moral issues, the preferable system would be for a cross-party committee (CPC), chaired by the Lord Chancellor, to approve candidates nominated by the judicial appointments committee. The CPC should include the opposition spokesperson on justice, with perhaps the balance to be nominated on a proportionate basis by all represented parties. It might include non-lawyers, provided some legal experts were guaranteed to be present. It would be entitled to interview candidates and its discretion would not be fettered, though in practice one would not expect probing of personal philosophies in the manner of the US.

As the candidates would already have gone through a rigorous selection process one might expect that the CPC would rarely expose any as being unsuitable. The process would however be a worthwhile means of protecting the court’s independence and legitimacy. Parliament would be seen as having the final say over appointments, but the non-partisan composition of the committee would preclude any appointee being seen as a governmental lackey.

The process advocated above bears some similarity to that followed recently in Canada with respect to Marshall Rothstein. It is also broadly similar to that suggested by Alexander Horne in a paper of much greater length than this post. I would recommend the paper and its bibliography as the appropriate starting point for further reading on the subject.

Tuesday, 10 May 2011

Necessity as a defence to murder

Published in Criminal Law and Justice Weekly, Vol. 175, 7 May 2011, p 270

Two media stories in 2010 of great human interest but with tragically different outcomes were those of the trapped miners in Chile and in New Zealand.  No insensitivity to the familes of the New Zealand mining disaster victims is intended hereby, but the possibility of men trapped in such a manner raises one of the classic problems of criminal law and jurisprudence, namely how far the rules of civilised society can apply in wholly exceptional circumstances. 

Suppose a group of people were trapped and could not be reached in time to prevent starvation without them resorting to cannibalism. That was the scenario envisaged by Lon Fuller in his classic essay “The Case of the Speluncean Explorers” (Harvard Law Review, Vol. 62, No. 4, p 616). Fuller's inspiration was, of course, one of the most infamous cases in English law, R v Dudley and Stephens [1881-85] All ER Rep 61, the case of the shipwrecked sailors killing and eating the luckless cabin boy.

Continue reading here.

Saturday, 7 May 2011

The Mabo litigation saga

Published in the New Law Journal vol 161, 29 April 2011, p 602

Prime Minister David Cameron recently attracted a few headlines when he suggested that “with so many of the problems of the world, we are responsible for their creation in the first place”. Needless to say, opinion was divided, both on the accuracy of his statement and the merits of him saying it whether true or not.

One thing Britain certainly did create, in 1788, was the modern state of Australia. At the time, it was considered that there were three ways in which title to land could be acquired: conquest, cession, and terra nullius - land with no human occupants. An inconvenience obviously arose for the last of those concepts if the land was bigger than first thought and it turned out that there were, after all, some people already living there. In response, a most offensive gloss was added by European lawyers to the effect that “primitive tribes” did not count, as they had no recognisable legal system. The Australian Aborigines found themselves labelled as such.

Lumped in with the same fate were the inhabitants of the tiny Murray Islands, three islands with a combined area of just nine square miles, situated in the Torres Strait (the sea between Australia and Papua New Guinea). The islanders were descendants of the Meriam people, whose ancestry long predates European settlements in the South Pacific. As the Australian colony grew, the colonial office in London and the fledgling local administration decided to extend the boundaries, and to that end the Murray Islands were declared annexed to the colony of Queensland in 1879.

The problem was that no one took the trouble to tell the locals about the annexation before the event. Just over half a century later, in 1936, one Eddie Mabo was born on Mer, the largest of the islands (pictured above). His was not an easy start in life. His mother died while he was in infancy. As a teenager he was exiled by the strict island council for a prank. He worked a few jobs before a stint as a gardener at James Cook University in Townsville. There he took exception to a conversation about ownership of land on the islands: as far as he was concerned his people, never having agreed otherwise, remained the rightful owners.

In 1981, Mabo addressed a conference at the University about the inheritance system on the islands, and thereafter a decade of litigation in his name began to determine the question of the ownership of the land. It was finally concluded in mid-1992 by the High Court of Australia (Mabo v State of Queensland (No 2) (1992) 175 CLR 1). The court declared that there was a system of native title (namely, interests and rights of indigenous inhabitants in land, under traditional laws and customs) recognised by the Islanders in 1879, which had not automatically been extinguished by the exercise of sovereignty by the Australian government (subject to certain exceptions). It was further declared that the traditional title had not been extinguished by subsequent legislation or executive act and could not be extinguished without the payment of compensation to the traditional titleholders. Further, the land was not Crown land within the meaning of the relevant Australian statute.

The effect of the ruling was emphatically to pour the doctrine of terra nullius with regard to the islands back into its bottle.

Not unusually for a cause célèbre, much of the reaction in the popular press combined hysteria with inaccuracy, but as things transpired the decision led neither to the extinction of private property rights as feared by some, nor to ultimate satisfaction of all Aboriginal claims as hoped by others. Subsequent cases fleshed out the caveats in the original judgment, including conditions for the establishment of native title and a reiteration that native title extinguished by a sovereign power could not later be revived, because thereafter only the sovereign power could create title.

Many Aboriginal claims have since been settled rather than proceeding through the courts, though of course the conduct of the negotiations would have been against the backdrop of the Mabo ruling. The importance of the case and the resultant vindication of Eddie Mabo's actions remain unquestioned (see Dr Kevin Lindgren QC, "Native Title in Australia" in Cases That Changed Our Lives, LexisNexis, 2010).

For Eddie Mabo himself, however, tragedy seemed to be present as much as triumph. He was denied permission by his own community to return to his dying father, on the basis that he was a trouble maker .... Then, with even crueller irony, he contracted cancer and died five months before the High Court gave the judgment for which his name will always remain legal shorthand.

So much for das Pathetisch-Erhabene. The native title doctrine has no relevance in England, but that does not mean Eddie Mabo's story should not be of interest to English lawyers. It was rather fatuous of Mr Cameron to lump the blame for present day Kashmir on the British: the governments of India and Pakistan are large and sophisticated entities who should not be excused blame for a situation that has been in their hands for decades.

By contrast, Eddie Mabo and his people, as we have seen, had their land taken by a decree of which they were not even told, and were not in the position of a sovereign state to do anything about it. A century of presumption by those who governed Australia did not alter the (im)morality of the situation. By 1992, of course, responsibility had long passed from Britain to the independent state of Australia, who at last set about righting the historical wrong.

Wednesday, 4 May 2011

The death of Osama Bin Laden

Published in Halsbury's Law Exchange here

It did not take long for the newspapers to invoke some stereotypical American imagery with regard to the death of Osama Bin Laden. Dr Tim Stanley in the Telegraph wrote shortly after the news broke that

America is a nation of laws, but beneath all that fine sentiment about procedure there is a stronger hunger for natural justice. ... It was in the American wilderness that the individual was once again freed to pursue their own kind of rough justice. The assassination of Osama is as American as the shootout that killed Billy the Kid. It is a personal Wild West drama writ-large on the global stage.

His article was accompanied by the picture of a cowboy riding into the sunset, in case anyone missed the point.

The theme of rough justice versus due process appears more than once in the Western genre. Indeed, one of the most eloquent arguments against mob rule comes from the famous horse opera The Ox-Bow Incident. In the film a hurriedly-assembled posse responding to the murder of a rancher by cattle rustlers discovers to its horror that it has mistakenly killed three innocent people, while the sheriff has caught the real villains in the meantime. One of the innocent men wrote a letter to his wife just before being killed. It is read out by a member of the chastened mob towards the end of the film:

My Dear Wife,

Mr. Davies will tell you what's happening here tonight. He's a good man, and he's done everything he can for me. I suppose there's some other good men here, too, only they don't seem to realize what they're doing. They're the ones I feel sorry for, 'cause it'll be over for me in a little while, but they'll have to go on rememberin' for the rest of their lives. A man just naturally can't take the law into his own hands and hang people without hurtin' everybody in the world, 'cause then he's just not breakin' one law, but all laws. Law is a lot more than words you put in a book, or judges or lawyers or sheriffs you hire to carry it out. It's everything people ever have found out about justice and what's right and wrong. It's the very conscience of humanity. There can't be any such thing as civilization unless people have a conscience, because if people touch God anywhere, where is it except through their conscience? And what is anybody's conscience except a little piece of the conscience of all men that ever lived? I guess that's all I've got to say except - kiss the babies for me and God bless you.

Doubtless the American authorities would prefer an analogy with the legend of the OK Corral instead, where the outlaw Clanton gang received its lawful dues at the hands of Wyatt Earp and his fellow lawmen during the eponymous gunfight.

The point is, of course, whether or not Bin Laden’s killing was lawful or a version of the Ox-Bow style mob. Two initial questions arise: (i) whether the US had the consent of the Pakistani government to carry out the raid on Pakistani soil; and (ii) whether the operation was intended to be a targeted killing, or whether they had hoped to capture Bin Laden but ended up killing him in self defence.

Neither can be judged conclusively at this early stage, but in the exceptional circumstances of the case, neither carries much weight. Reports suggest that the Pakistani government was not told in advance, nor did the US have some sort of prior agreement to carry out raids when it saw fit, although it has been undertaking strikes from drones in the north of Pakistan for some time. But Pakistan has not raised a formal objection to the raid, nor does it seem likely that it will. This may have something to do with the alarming fact that Bin Laden was apparently able to live for a long period of time in a rather distinctive compound very close to the country’s premier military academy.

As to the second point, President Obama initially indicated that the raid was an assassination, though it has since been suggested that if Bin Laden had surrendered he might have been taken into custody instead. But a measure of realism has to be brought into the equation here. I recall some debate in the United Kingdom Parliament during the early stages of military operations in Afghanistan after 9/11. It was suggested that if found by British forces Bin Laden would be brought back to the United Kingdom to face a fair trial. This, it was said, was in contradistinction to his acts of mass murder: the UK, as a civilised nation, would act according to standards its enemies would not.

Such sentiments are entirely true, entirely admirable and, in the case of Bin Laden, entirely unrealistic. It is possible to preach the highest standards of law and order from within the well-upholstered and comparatively safe confines of the Houses of Parliament. It is (almost always) possible to abide by those standards when dealing with “ordinary” criminals within the jurisdiction. But it is quite another thing when one is a soldier on the front line, let alone when one is a special forces’ soldier conducting a raid in hostile territory. The Navy Seals who entered Bin Laden’s compound would not have had the chance to negotiate or subdue anyone without unacceptable risks to their own lives, and it is preposterous to think otherwise. They inflicted minimal collateral damage (initially it was said that one of Bin Laden’s wives was killed whilst he used her as a human shield, but one would struggle to call that collateral damage, and in any event it transpires she may only have been wounded after rushing the troops herself). If they had used a safer option from their point of view, such as an airstrike, then much greater collateral damage would probably have occurred and, moreover, it would not have been possible to prove that Bin Laden had been present.

It would seem therefore that no objection will be sustainable either on the basis that the US mounted the raid inside a sovereign state without permission or on the basis that Bin Laden was killed rather than captured – that is, of course, assuming that there was just cause to assassinate Bin Laden in the first place.

In that respect a helpful discussion has been published on the blog of the European Journal of International Law here. The blog notes that there are three applicable principles of international law: jus ad bellum (just war), international humanitarian law, and international human rights law.

It is slightly cumbersome to speak of just wars, or any other type of “war” when one is not dealing with a conflict between two sovereign states. The nature of the West’s actions against organised international terrorism is not as simple to analyse as, say, the United Kingdom’s war against Argentina over the Falkland Islands (which had a defined battlefield and accepted rules of war, both of which both sides by and large observed). But Bin Laden had avowedly declared his belief that he was engaged in a “war” with the West, in particular the US, and by his organisation had prosecuted it in every way he could, including a series of attacks such as the embassy bombings and the suicide attack on the USS Cole in the late twentieth century. He consistently called for more such attacks as well. The fact that he had made few public statements in recent years, and that his ability to organise attacks appears to have been severely restricted, changes nothing: it is not as though he ever suggested a truce or retracted any of his previously stated intentions.

Accordingly, the US was justified in attacking him out of self defence, which conforms with traditional notions of a just war and is permitted by art 51 of the UN Charter. That Al Qaeda is not a sovereign state as such should not mean it can fall between stools of international law, as it were, and not be attacked out of self defence. Pakistan as a sovereign state could raise an objection about a hostile act on its soil, but as discussed it has not and (in all likelihood) will not.

As to the international humanitarian law aspect, I am content to adopt the analysis of the EJIL that

it either does not apply at all as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

Which leaves international human rights law. The United States is not a signatory to the International Criminal Court, and argues that the International Covenant on Civil and Political Rights does not apply extraterritorially. Both stances are controversial, and I would maintain that some form of human rights laws should have applied to Bin Laden one way or another: human rights, if they are to mean anything, have to apply to all. But that does not mean Bin Laden’s rights were violated. Given that the US was entitled to attack him out of self defence (and by all accounts he made no attempt to surrender) his death was not unlawful on any view.

It is right to examine the circumstances including the legality of Bin Laden’s death, however despicable an individual he was – indeed precisely because he was such a despicable individual who never afforded his victims any such civilised standards. It is equally right to acknowledge that capturing him alive was never going to be a realistic possibility. He has justly met his end.

A cross to bear

Published on Halsbury's Law Exchange here

I have written a number of posts on religion and the law over the past few months on Halsbury’s Law Exchange and elsewhere. On each occasion I have sought to work out principles of equality and freedom for general application. Among other things I have argued that employers should be free to set their own uniform standards, including in relation to religious symbols; and that employees seeking exemption from those – or indeed any of their employment duties – should agree terms beforehand or lump it. Freedom of religion does not provide religious followers with exemptions from the law applicable to everyone else.

Obviously employers ought to be fair in their uniform policies. They should not ban some religious symbols and activities but allow others, unless they have good grounds for doing so. If they run a Christian bookshop, for example, they should be entitled to ban other religious symbols and require that their staff have a pretty sound knowledge of Christianity. Or they can set up a Halal or Kosher sandwich shop and expect staff to produce food accordingly.

All of the above points apply to a story occupying some press attention of late. It seems the dispute has been settled, but the point may well arise again in future and therefore a belated post is still appropriate.

I am referring to the story of the van driver who was told to remove a palm cross from his dashboard. His employer did not want any visible religious symbols on its vehicles.

On the face of it, the employer was entitled to set its own policies on such matters; a policy excluding all religious symbols would be a rational one; and, provided it was applied equally (ie not some religions and not others), then there would or should be no legal grounds to interfere with that policy.

There is, however, another well-established principle of the common law that ought to have been observed, namely the maxim de minimis non curate lex. Or, if we are to discard the Latin, "the law does not concern itself with trifling things".

Did it really offend anyone that the driver had a common symbol on the front of his van? Apparently so, since there was a “complaint”, and indeed if one looks far enough one can probably find someone offended by anything anywhere. That would not necessarily provide grounds for the law to intervene. The better question would be should anyone have been offended? Surely not in this instance (and that is without taking into account what vans in my experience usually have displayed on their dashboards).

It is not as if the driver was asking for special privileges such as days off for religious observance or exemption from regular duties. Nor that any rational customer would be put off by viewing the symbol; it can hardly be compared to a symbol of a fascist organisation or similar.

I am reminded of one of the stories that beloved of the tabloids, namely the banning of Easter and other Christian celebrations by local authorities on the basis that they might offend the non-Christian constituents. Most such stories are apocryphal. Chances are if any are true that the non-Christians would be more offended by the assumption that they would be offended. Again, the test should be objective, not subjective - should anyone be offended. A sense of perspective, or proportion – or even a sense of humour – might not go amiss on such occasions.