Bad Law and the CPS Part II: the Simon Walsh "extreme porn" trial

The second part of my article on bad law and the CPS comes out tomorrow in Criminal Law and Justice Weekly.  It concerns the "extreme porn trial" of the barrister Simon Walsh, who was acquitted of charges arising out of electronic images Mr Walsh possessed. Contrary to the Chambers twitter trial considered in Part I of the article, I have concluded that the CPS was not entirely to blame.  If there was a prima facie case that Mr Walsh had committed an offence, then he would have to be charged unless he passed the very stringent test of public interest being against a prosecution.  It is not for the CPS to rewrite the law - Parliament has to do so, and until it does we will be stuck with people being prosecuted when they should not be, as with Mr Walsh.  The jury system is the only hope in the meantime, and fortunately the jury worked in Mr Walsh's case.

A link to the online article (subscription only) is here.

A deadly secret

Published in the New Law Journal, vol 162, 28 September 2012, p 1230

New Zealand, like the United Kingdom, has a fairly comprehensive national health system, although the system does not share the same name and is in some respects perhaps not as comprehensive. Being a far smaller community the opportunities and resources for medical specialisation are necessarily fewer, for example. Nevertheless, it has long been the expectation of New Zealanders that they will receive health care on the basis of need, not ability to pay. Any identifiable exceptions to that rule over the years have always generated strident public debate.


So it was in the mid-1980s, when the government decided it would no longer pay for heart transplants in New Zealand hospitals. Instead, grants would be made available for patients to have the operations performed in Australia. To say that the measure was controversial would be an understatement. It certainly would have come as a painful shock to one Mr Tucker, a patient on the transplant waiting list at the time.

Worse was to follow for Mr Tucker. The grant subsequently offered by the government was nowhere near enough to pay for the necessary treatment in Sydney. Sympathetic newspapers picked up his plight and a national fundraising campaign was held. The campaign appeared to be successful and he travelled to Australia to await his operation.

In the meantime, however, the rumour mill had been fed some grist. It turned out that Mr Tucker had an unsavoury past, having served time in jail for indecent assault. Unsurprisingly, public sympathy for his plight started to evaporate, along with some of the promised funds for his operation.

With his life now imperilled, both by the lack of funds for the operation and the extra stress brought on by the adverse publicity, Mr Tucker applied to the High Court for an injunction restraining further publication of his past convictions.   Continue reading here.

Bad law and the CPS Part I: the Paul Chambers Twitter Trial

In a two-part article for Criminal Law & Justice Weekly, I have looked at the position of the Crown Prosecution Service (CPS) in two recent high profile cases. The first concerns the “twitter trial” of Paul Chambers.  The second looks at the trial of the barrister Simon Walsh arising out of pornographic images said to have been found in his possession. The first part has now been published (see Criminal Law & Justice Weekly, vol 176, 22 September 2012, pp556-7).

Readers will recall that Mr Chambers was convicted in the magistrates’ court regarding a supposedly threatening tweet. His conviction was upheld in the Crown Court but eventually overturned by the Divisional Court.

The interesting point concerns the appeal to the Divisional Court. According to its most recent press release on the subject, the CPS did not support the conviction, but still appeared before the Divisional Court and “reluctantly” contested the appeal, because the conviction was based on a finding of the Crown Court, which only the High Court could overturn. I, for one, am most uneasy with the thought of the CPS contesting an appeal it thinks should fail.

To illustrate the point, let us start with two scenarios where the proper course for the CPS would be to acquiesce in an acquittal. In scenario A, a conviction is obtained but the CPS then discovers that it has been based on an outdated section, and the offence no longer exists. Or perhaps the conviction has been based on an authority since overruled.

In those circumstances the obligation of the CPS would be clear: they would have to bring the correct statute or authority to the Court’s attention, point out the error and accept the defendant’s acquittal.

In scenario B, the CPS is informed by the police that it turns out that the defendant had a watertight alibi after all, and therefore the conviction was based on a patently wrong factual foundation.

Again, the CPS would have to accept the error and tell the court that it did not oppose the appeal.

Let us now return to Mr Chambers. Here the situation was slightly different. The facts – essentially, the existence of the tweet - were never disputed. What was in issue was whether the tweet constituted an offence under the Communications Act 2003. I can find almost no published opinion which ever thought that it did, save for those few people in the legal chain (police, lawyers and judges) who made the conviction come to pass.

So how does this differ from scenario A or B? Only in the sense that interpretation of a statute is not as cut and dried as in the case where the offence has been abolished, as in scenario A, and unlike scenario B the facts of the Chambers’ case were not disputed, just whether or not they should have amounted to a crime. But it is not so very far removed, if everyone takes the view – as it seems they did by the time it reached the door of the Royal Courts of Justice – that the conviction was based on an interpretation of the statute that was simply not in accordance with reality, and was therefore unworkable. If the DPP accepts that that is the case, he should not be turning up to court hoping to lose.

Instead, he should point out all the arguments below and explain why he has taken the view that they were mistaken and that the defendant should be freed. The Court would then most likely ask some searching questions about the DPP’s change of heart. It would be very unlikely, however, though I suppose not impossible, that the Court would insist that the conviction stood.

The alternative would be for the DPP to contest the appeal. Suppose he does so and wins. In that case, a man would remain convicted despite the prosecution wishing he had never been charged, and presumably taking the view that no-one else in comparable circumstances would be charged ever again.

I venture to suggest that that would not be a just outcome.

Armed Forces and policies on defence

Published in the Times, 22 September 2012. It was the lead letter for the day.

Dear Sir


George Webster correctly applauds Paul Flynn MP’s defence of the generals of the Great War against the common misconception of “Lions led by Donkeys” (letter, Sept 20). Contrary to popular belief, the phrase did not originate in that conflict. More to the point, had British generals been hopelessly incompetent it is unlikely that they would have finished on the winning side, never mind with the victories of the “hundred days” in 1918 behind them. In fact, 1918 was probably the only time in its entire history that the British army could claim to be the most powerful field army in the world.

There, is, however, one point on which I would take issue with Mr Flynn. It is true that few ministers have covered themselves in glory with respect to defence in recent years, whether in terms of short-term procurement, long-view White Papers or, most importantly, starting and conducting foreign wars. But it is another matter to exculpate today’s generals for any of those issues. Where is the evidence that any senior officers advised the government in 2003 that the British army was wholly unsuited in terms of training, equipment and rules of engagement for the reconstruction and counter-insurgency that would have to follow any successful invasion of Iraq? How many officers have had their careers halted by the subsequent events in that country or Afghanistan?

Instead the armed forces have successfully inferred that it has all been the fault of politicians, without mentioning who advises those politicians. This is no more honourable than those former members of Mr Blair’s cabinet who claimed in their later memoirs that they did not really support the Iraq War and had doubts about the PM’s judgement, despite not voting against the invasion or resigning their posts at the time.

A flying nuisance

I have a friend who grew up in the 1970s near to RAF Waddington, where Vulcan bombers were based. He has dryly remarked on more than one occasion that those who complain about noise from Heathrow should try having four Olympus engines in a holding pattern above their house for half an hour or so. I myself have seen B.2 XH558, the last surviving Vulcan, flying at an airshow, where a different friend accurately summed up the noise as “the sound of doom”.


But the Vulcan bomber hails from a very different age. It first flew in 1952, when the British jet industry was in its heyday. That year a disastrous crash of a DH 110 at the Farnborough Air Show left 29 spectators dead. Not only did none of the survivors or the families of the deceased sue anyone afterwards, the organisers did not even stop the event. Instead the dead bodies were cordoned off and the rest of the day proceeded on schedule.

No doubt the primary reason was that all adults present had lived through the war, and would therefore have experienced even worse tragedies many times. Their respect for the forces would also have been of a different order to the present day.

In more recent times, by contrast, the European Court of Human Rights has had to grapple with the aforesaid Heathrow denizens bringing proceedings about aircraft making them lose sleep. The claim was rejected, though not without a few newspaper columnists dispensing insults about pointless claims and an enfeebled age.

Now the Telegraph reports that a different homeowner, one Mr John Jones, has tried a more direct form of action after RAF jets overflew his property on a regular basis. Mr Jones contended that the pilots were acting like “hooray Henrys” and “opening the throttle” over his property up to 75 times a day. In response he raised a weather balloon and warned the nearby airbase of its presence. He has since made a complaint to the Civil Aviation Authority.

If it were a purely civilian matter things would be easier for Mr Jones. He could simply sue for nuisance and it is hard to imagine that any private activity which generated the sort of noise that a low-flying fast jet does would not result in the perpetrator either being compelled to stop or to pay substantial damages or both.

Where the military is concerned, however, there is a substantial countervailing factor in the form of the public interest in an effective defence force. That means, among other things, regularly flying fast jets for training and patrols, and of course the planes have to fly somewhere. In a small and relatively crowded country like the United Kingdom the chances of them always avoiding civilian areas are slim.

Moreover, tight controls about speed and altitude are properly imposed on civilian pilots, but fighter pilots have to hone their skills flying as low and as fast as possible.

Similar issues were considered in the case of Dennis and another v Ministry of Defence [2003] All ER (D) 300 (Apr). Mr Dennis, the owner of an estate in Norfolk, brought an action against the Ministry of Defence arising from the loss of amenity caused by Harrier jets flying from RAF Wittering. The claim was brought in common law nuisance and for breaches of Art 8 of and Art 1 of the First Protocol to the European Convention on Human Rights. Mr Dennis was anxious that the judge accept that he was a supporter of the RAF and that he strongly believed in the need for a fast jet force – just not in his backyard.

The approach the judge took was that while the public interest should be considered in relation to nuisance, selected individuals should not be forced to bear the cost of the public benefit. It was therefore appropriate to weigh the public interest not when deciding whether a nuisance existed, but at the remedy stage. That way, it would be open to the court to allow the nuisance to continue while requiring the public as opposed to Mr Dennis alone to pay for its benefit.

In the event Mr Dennis was awarded damages of £950,000 and the flying was permitted to continue (or rather it was, until the Harrier fleet was retired in somewhat controversial circumstances).

Assuming, therefore, Mr Jones is not satisfied by his complaint to the CAA, he might bring an action along the lines of Mr Dennis. Whether he would succeed would depend on the particular facts, but the earlier case gives an example of how the public interest can be preserved without eviscerating the claimant’s private rights.

One hopes matters do not get that far, if only because the ever-shrinking defence budget could better be spent elsewhere. Then again, there is no justification for the military to have carte blanche to fly anywhere it likes in peacetime: Britain is not, after all, a military dictatorship. Moreover, the fundamental importance of property rights – key to our freedom and economic prosperity – requires that when the state does something which reduces the value of a citizen’s property, the citizen should be compensated, even if there is a strong public interest in the state’s activity.

Accordingly, absent a compelling military need, there is no justification for permitting the more adventurous pilots regularly flying low and fast with no compensation to affected citizens, and cases such as Dennis show the sort of sensible compromise that can be reached.

Some hardened RAF veterans might be unimpressed. Even in the halcyon days of the British jet age, however, fairly strict controls were imposed by the RAF itself on flying over residential areas. Also, they might even see an upside. Flight Lieutenant Alan Pollock’s legendary protest by way of flying through Tower Bridge in a Hawker Hunter jet (memorably described in James Hamilton-Paterson’s book Empire of the Clouds: When Britain's Aircraft Ruled the World (2010)) was, I suspect, all the more satisfying for him knowing how many regulations he must have been breaking while he was doing it….

Cases, Causes and Controversies: Fifty Tales from the Law

I have a new book with the above title being published in November, which may be pre-ordered here.  Several of the chapters have been foreshadowed in blogs on this site and elsewhere.  The blurb is as follows:

What do Prince Charles, Bette Davis, Sir Ian Botham, Mrs Victoria Gillick and a man whose family grave appeared in the background of a splatter horror film have in common?


Each of them felt they had been wronged in some way, and each went to court to try and do something about it. Sometimes their case was a purely private argument. Others brought cases of national importance, or claims which raised acute moral and ethical principles. Some won handsomely, while others lost so badly that they ended up far worse than when they started.

This new book looks at fifty legal disputes from Victorian times to the present day, where a compelling moral or legal issue was at stake, or where the background to the case was interesting, amusing or infuriating.

It begins with three Victorian murders, including the law student favourite of R v Dudley and Stephens, the case of shipwrecked sailors eating the cabin boy and later facing trial for his murder.

It then covers cases ranging from the early days of Hollywood and both world wars, through to modern day battles over superinjunctions, MPs’ expenses, the vexed relationship between religion and law, and the sometimes hazy relationship of law and sport.

Some of the stories are border on the absurd. Why did the legendarily tough international sportsmen Ian Botham and Allan Lamb show no fear in the face of hostile fast bowling on the pitch, yet go crying to their lawyers when their old opponent Imran Khan said something they didn’t like in a newspaper?

Irony runs through many of the cases. Bette Davis was left penniless after losing her case in England and felt she had no option but to return to America and resume working for the studio she had unsuccessfully sued. But after doing so she became one of the richest and most and acclaimed actresses in history. In other cases the irony is less happy: the indigenous rights campaigner Eddie Mabo won a great victory for his people, but was shunned by them during his lifetime and never lived to see his final legal victory.

Then there are the outright tragic: the murder of the civilian Charles Fryatt by the Germans during the Great War, for example, shocked not only his own side but neutral observers of the day as well. In modern times, the blameless good citizens Dianne Pretty and Debbie Purdie were stricken with terminal illnesses and were forced to seek legal approval for their desire to end their lives at a time of their own choosing.

Written in a clear, accessible style, free of legal technicalities, the book will be of interest not simply to lawyers but to anyone interested in stories of great human interest and how the legal system tried to deal with them.

The book is published by Wildy, Simmonds & Hill, with thanks to LexisNexis.

New Zealand Human Rights Blog - welcome

As an expatriate New Zealand lawyer I congratulate the founders of the New Zealand Human Rights blog (h/t Adam Wagner on Twitter). As Mr Wagner points out, it seems that the blog will have much of interest to English lawyers.

I would like to make a couple of observations on one of the opening posts on the blog, and relate them to a recent article by Rosalind English on the UK Human Rights Blog.

The NZHR post is meant as an introduction to human rights. I state at the outset that like, the author of the post, I am a strong believer in the principle of individual rights and classical liberalism generally. It is, however, not true to say that these rights are incontestable or that the idea of them can be taken for granted. The post states:

If one argues that with respect to the above the initial premise of moral equality itself requires justification, the appropriate response is that this is an axiomatic truth that, like the epistemological concept of a “basic belief,” is justified in and of itself. One only need consult the words of the American Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal”.

A glance at almost every society in human history - classical, pre-industrial or post-industrial - shows the "truth" of individual rights, at least to modern standards, is anything but universally accepted or considered self-evident.

Perhaps one might respond that the logic of modern human rights was always obvious and simply there to be discovered, like nuclear physics or the principles of powered flight. But human nature is not an objective science, I need hardly add, and even in the present day there are those who hold the belief that various forms of communist theories are the correct form of society, wherein individual considerations are subordinate to the greater good as represented by the interests of the state. North Korea is an extreme example, while for its part Communist China has embraced the adoption of private property rights to the extent of creating a competitive economy while resisting any notion of a democratic franchise or much in the way of numerous other rights such as freedom of expression.

Other countries, meanwhile, hold human rights by definition to be secondary to what they consider divinely ordained rights. Rather than debating rights and freedoms they instead debate the meaning of ancient texts; in other words, they seek revealed truth. I refer of course to theocratic states. For them what is self-evident is the truth of their texts, not the sort of concepts which the American Founding Fathers had in mind, and they will not accept that the starting point is equality and that everything flows from that.

We then come to the second point, which is the familiar debate of how to accommodate religious beliefs in states such as the United Kingdom and New Zealand, where modern notions of equality are accepted as fundamental. The right to religious beliefs and to forms of worship should be respected and protected by law. The problem comes when someone demands that their religious belief should exclude them from provisions of a private contract or the general law including anti-discrimination provisions.

I have written on this subject on a number of occasions.  Here I will confine myself to one passage in the post by Rosalind English mentioned above. She writes:

"You can choose your religion. Race, gender, sexual orientation and disability are immutable. Where a person who has voluntarily adhered to a set of religious beliefs seeks exemption from the requirements of the workplace (and in some cases, those of the 2010 Equality Act), he or she should be in no better position than non-religious person who does not have a theistic credo to back up their views … "

With this I agree generally, but there is an issue with the first two sentences: some argue that they cannot change their religion. They are entitled to that view and the law should not suggest otherwise.

This point is however answered by Ms English thus:

In any event, the courts naturally and logically find no discrimination where both religious and non-religious persons are equally prevented from opting out of civil society’s requirements. There is no discrimination on grounds of religion or belief.

Here is the true distinction between race, gender, sexual orientation and disability on the one hand, and religion on the other. No-one’s race, for example, has anything to do with how they perform a job or other public activity; people do not turn up to work and demand an exemption on the basis they are race X not Y, and if they did they would not receive a sympathetic hearing to say the least. On the other hand, people are entitled to believe that their religious beliefs are immutable and as much an unchangeable part of them as their race, but they are not entitled to ask for separate legal treatment accordingly. I have expanded on this point here and in my forthcoming book.

Finally, Ms English also states in the same part of her article that

“wearing a crucifix is a matter of personal choice, as the Court of Appeal has found …”.

It is inappropriate for the courts to have to determine whether some article of clothing or jewelry is mandated by a faith or is a matter of personal choice or cultural (that is, non-religious) norms, and they should not have to do so. Instead courts should simply consider whether an employer’s uniform policy actively discriminates against any religion or culture. If the policy treats all equally then the grounds for the law interfering are slim.

No doubt, however, many differing opinions will be canvassed in the forthcoming Strasbourg judgment, which all human rights lawyers await with keen anticipation.

More on the Lord Chancellor

UPDATED 11 September

Here are a few more thoughts on the subject of Chris Grayling’s appointment as Lord Chancellor. Much adverse comment on Mr Grayling’s suitability for the post has been aired on the blogosphere, but the letter I wrote was in response to an opinion by the constitutional law expert Francis Bennion. Mr Bennion (who was highly critical of the previous government's attempt to abolish the office of Lord Chancellor) argued that not only was the appointment unwise, it was actually unlawful, as Mr Grayling lacks the qualifications set out in s 2(1) of the Constitutional Reform Act 2005.

Section 2 provides:

2 Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section “qualifying practitioner” means any of these—

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.

Two points are relevant. First, s 2(1) uses the word “may” in an obligatory sense; that is to say, “may not” in this context means “can not”. The need for experience is a requirement, not a guide or an option. Mr Grayling’s experience must therefore be scrutinised.

Second, however, what constitutes “experience” is fleshed out by s 2(2). By stating that the Prime Minister “may” take into account “any” of the points that follow, the discretion is very wide indeed, legally speaking. In Mr Grayling’s case, although he does not meet s 2(2)(c) or (d), not being a lawyer, he does have experience as an MP and a Minister of the Crown. Therefore, if challenged, Mr Cameron could point to s 2(2)(a) and (b), and indeed he could also rely on the almost intangible s 2(2)(e) point of “[any] other experience”.

On a technical interpretation, therefore, Mr Grayling does meet the statutory qualification for his post and so any legal challenge is likely not to succeed (not that one can imagine such a challenge - which would presumably have to be by way of judicial review - being brought). Needless to say, though, that does not put his appointment beyond question on wider grounds, such as those articulated by Joshua Rozenberg in the Guardian.

Mr Rozenberg’s points are well made. Law remains an expertise, and it should not be controversial to suggest that the person holding high legal office should be a leading member of the profession, or at least recognised as having some expertise. This Mr Grayling appears not to have and one is forced to conclude that his appointment does not meet the spirit of the 2005 Act irrespective of the letter.

Still, Mr Grayling may yet go on to distinguish himself in the post. At the least, one hopes he has a better time of it than his fictional predecessors in WS Gilbert’s Iolanthe or AA Milne’s King Hilary and the Beggarman ...

UPDATE: Alex Horne (@AlexanderHorne1), a constitutional lawyer, has pointed out that at the time the bill which became the 2005 Act was making its way through Parliament, the House of Lords Select Commmittee on Constitutional Reform considered the issue of the Lord Chancellor's qualifications.  Members disagreed on whether there should be a requirement for a legal qualification, and therefore no recommendation was made.  This passage in particular I find interesting:

"Lady Justice Arden (...) told the Committee that she sees a great advantage in the Minister being a senior lawyer. She expressed concern for maintaining an apolitical appointments process, "something of which this country can be extremely proud". She believes that it is better for the Minister receiving recommendations from the judicial appointments commissions, to be senior lawyer at the pinnacle of his career, "a person who is not in the throes of a political career""

One of the criticisms that has been made against Mr Grayling is that he is a relatively young minister on the ascendancy, and therefore may be tempted not to rock the governmental boat in the way a more senior person (and particularly a senior lawyer who had had a distinguished career outside politics and was therefore not in need of the party shilling) might. One hopes therefore that Mr Grayling will be well briefed on issues such as judicial independence and will be prepared to resist any attempted incursions by the executive.

The Commons Committee also considered the issue.  They noted that:

26. Two qualifications for holding the office of Lord Chancellor have been included in the Bill: that the Lord Chancellor should have been the holder of high judicial office or have been a practising lawyer for at least 15 years; and that "No person is qualified to be Lord Chancellor unless he is a member of the House of Lords".

They concluded:

The Lord Chancellor will have key roles in relation to the judiciary and in judicial independence, the rule of law, judicial appointments and discipline. The principal responsibility for judicial appointments will be with the Judicial Appointments Commission and for judicial discipline with the Lord Chief Justice. It may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer

With this I have to agree.  It did not come to pass, however, and instead we have s2 of the 2005 Act, which as I have said gives the Prime Minister very wide scope indeed.  The appointment of Mr Grayling may therefore not be challenged in law.  We should hereafter judge him on his performance rather than his qualifications. 

Strasbourg and religious freedom

Published on Halsbury's Law Exchange on 4 August 2012

The American humourist PJ O’Rourke once said that it was funny how those who wanted to share their religious views with you, never wanted you to share yours with them. The European Court of Human Rights is about to have to share its views with all of us: this week it is hearing four cases on religion and the law. Each will be well known to all British human rights lawyers. The ECtHR’s summary provides:


The applicants, Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, are British nationals (…)

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor1, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

Thus the four cases fall into two categories, within the broad heading of religion and employment.

In the first category, the applicants wished to wear religious symbols whilst at work (the symbols cases). In the second category, the applicants did not wish to carry out duties which might have led to an inference that they condoned homosexuality (the refusal cases). The two categories share common issues but are by no means identical.

One might be forgiven for thinking that the symbols cases were a relatively trivial matter. Almost no-one would be offended by someone wearing a cross, and if they were they should be told to do something useful with their time.

The answer, however, is that we are back in the realms of legal principle, and whilst the crosses might well be seen as harmless symbols that merely reflect a mainstream faith, if they are permitted as a legitimate departure from the employer’s otherwise secular uniform policy, someone is bound to turn up next week wanting to wear something offensive and citing religious grounds for doing so.

One possible response is that relatively inoffensive symbols such as crosses should be permitted, but not ones that are blatantly offensive. This is sometimes phrased in the terms of “reasonable accommodation”, by which the courts attempt to judge whether and to what extent employers should have to make allowances for employee’s beliefs.

There are several problems with the court trying to decide what is offensive and what is reasonable. Is it to be judged from the perspective of the victim, the perpetrator or a neutral observer?

Even before reaching that stage, one has to determine what constitutes a “religion” in the first place. Recent disputes over druidry and Scientology show that this is by no means a simple question. One judicial effort in this country was Nicholson v Grainger plc [2009] All ER (D) 59 (Nov)), where the Employment Appeal Tribunal had to decide whether a belief in “man-made climate change” equated to religious belief for the purposes of anti-discrimination provisions. The tribunal ended up with a Delphic four-stage test wholly unsuitable to providing clear guidance to citizens by which they might order their affairs; in other words, a ruling not compatible with the rule of law.

Much the better approach in discrimination cases would be for courts not to decide whether any particular employee has been discriminated on religious grounds as such, but rather on any grounds (religious, gender or whatever) irrelevant to their employment. In Nicholson v Grainger, therefore, the court should simply have been required to ask what the reason was for Mr Nicholson’s treatment by his employer, and then to consider whether that reason was relevant to his employment or was instead arbitrary or otherwise oppressive behaviour by the employer.

Similarly, in the symbol cases, the question should be whether there was anything dubious about the employer’s uniform policy which did not allow for crosses or other jewellery to be worn openly. Ordinarily, employers should be able to set whatever uniform policy they wish, and it should then be for prospective employees to be made aware of the policy before they start.

One point that was made in the symbol cases at an earlier stage was that Christianity does not actually anywhere mandate the wearing of a cross, and it should in any event have been possible for the employees to wear it discretely, under the uniform. That, however, is no answer, since the courts are not in a position to interpret the tenets of any particular faith and so cannot be asked to adjudicate whether or not faith x really does require garment y, or whether garment y is just a social and cultural construct.

It would be a tidy solution to allow employers to set any uniform requirement they wish and leave it at that. The problem is that some religious mandate the wearing of certain clothing, such as the veil, which cannot be hidden in such fashion. Can we really envisage an employer being entitled to refuse to employ anyone who wishes to wear a Muslim headscarf, or a Jewish Kippah?

Accordingly the courts may be required to engage in a degree of palm tree justice, and hold that irrespective of any uniform policy employers should indeed make a ‘reasonable accommodation’, under which they will be permitted to ban clothing and the like on health and safety grounds, but required to allow certain religious symbols and garments if the employee otherwise complies with the uniform policy. This should not impose a burden on the employer to adjust its uniforms; it would be for the employee to wear something in addition if he or she chose to do so. It is a grey area, however, and therefore it will be interesting to see what Strasbourg makes of it.

The refusal cases on the other hand admit of a more straightforward answer. Both employees accepted employment with an organisation with a publicly announced diversity policy, requiring provision of services to the public irrespective of various characteristics including race, gender and sexual orientation. The employees were therefore bound by their contract not to discriminate on those prohibited grounds. If they disagreed, they should have found a different job. Moreover, if they had wanted the same exemptions on secular grounds they would have received the same answer; the diversity policy was not aimed at suppressing religion but rather suppressing discrimination on any ground.

Imagine for a moment that the employees proclaimed that their religion prohibited them dealing with Jews or Muslims, or otherwise being seen as “condoning” them. Or imagine if a judge suddenly decided that his religion dictated that a woman’s evidence was of less importance than that of a man. They would be given a short answer. It will be most surprising if Strasbourg comes to a contrary position.

Meanwhile it will be interesting to see what influence the Strasbourg judgment, if it arrives first, will have on the Supreme Court when it comes to hear the well-known case of Peter and Hazelmary Bull, a couple who refused to allow a same-sex couple to sleep in a double room in their B&B. I suspect the answer will be the same as with the refusal cases above: the Bulls would not have been permitted to discriminate on non-religious grounds, and will therefore find their admittedly indirect discrimination banned on the same grounds. Either way, there will be much food for thought from both the Supreme Court and their colleagues in Strasbourg on a subject which seems rarely out of the headlines in modern Britain.

Lord Chancellor in the Times

I have been published in the Times this morning, on the subject of the appointment of Chris Grayling as Lord Chancellor.  One correspondent observed last week that the Constitutional Reform Act requires a prospective candidate to be someone who "appears to the Prime Minister to be qualified by experience", and since Grayling has no legal experience at all, his appointment must be void.  I added (with thanks to Alex Horne):

Your correspondents (07 September) are correct that Mr Chris Grayling lacks the qualifications required for the post of Lord Chancellor. In its initial press release announcing Mr Grayling’s appointment as Justice Secretary (http://www.justice.gov.uk/news/features/new-secretary-of-state-announced), the Ministry of Justice did not even mention that he also held the post of Lord Chancellor. Perhaps Mr Cameron was not so much badly advised, as not advised at all.