The Pryce of Juries ...

Introduction: the Pryce of justice

The dismissal of the Vicky Pryce jury has once again raised the question of whether jury trials should be modified or abandoned completely.  Needless to say it is among the most emotive of all questions regarding the criminal justice system.  It seems to me that many of the usual justifications regarding juries do not withstand scrutiny, and yet paradoxically logic may not have the last word.

Mrs Pryce is the former wife of the former MP Chris Huhne. Both were charged with perverting the course of justice after it emerged that Mrs Pryce had claimed responsibility for a speeding offence which Mr Huhne had in fact committed (he wanted her to have the three points so he could retain his licence).  Mrs Pryce pleaded not guilty and so was tried before a jury. While the jurors were considering their verdict, they submitted a list of questions to the judge.  These included: “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?”; and “Would religious conviction be a good enough reason for a wife feeling she had no choice … to obey?”. The latter question was asked in spite of Mrs Pryce’s religious convictions never being mentioned in the case, let alone placed in issue. 

The calibre of the questions was enough to convince the trial judge that the jury simply did not have the faintest idea what they were doing.  He therefore dismissed them and ordered a retrial.

There was a wide spectrum of reaction in both the popular and legal press. Some saw the case as an aberration; the fact that juries are dismissed so rarely was itself evidence that the system was basically sound (in over 99% of cases juries reach a verdict, according to a study of Crown Courts from 2006-2008), or reasoned that it was simply an example of the safeguards of the system working. Others seem to think it was indicative of the collapse of Western civilisation, given that 12 ordinary people taken at random from the electoral role did not have a grasp of the English language or of English institutions.  Research by the Ministry of Justice in 2010 actually tended towards the latter, as it showed some two-thirds of jurors did not fully understand the judge’s directions. Certainly, the study coupled with the Pryce saga gave valid reason to debate whether we should continue with the jury system in its present form.  It will not do simply to trot out the usual chestnuts about juries being enshrined in Magna Carta; brining independence into the courtroom; or having the value of the “ordinary person’s experience” as opposed to the extraordinary rest of us. Let us consider each of those justifications in turn.

The “historical justification”

It is often argued that we have had juries for centuries and they accordingly form a central part not simply of the criminal justice system but society generally.

An immediate qualification is required: the mention in Magna Carta of trial by one’s “peers” was certainly not a reference to “equals” in the modern sense. Instead, mediaeval juries served two primary purposes: first, to define what the law was, by reference to the norms of the local community; and secondly, to bring to bear their personal knowledge of the defendant when determining his guilt.  Both purposes were appropriate to small, undeveloped and isolated communities. Neither is appropriate today, when the law is supposed to be determined in advance by duly elected or appointed law makers, and a prerequisite for a fair trial is that none of those involved on the part of the state have personal connections to the defendant.

A modern jury is supposed to be only a fact-finding tribunal, which has to determine the weight of evidence as presented in the trial.  In this form juries date more from the time of the Glorious Revolution as opposed to 1215. 

In any event, we can dispose of the “historical justification” much more simply. The age of an institution or human practice is hardly a decisive argument in its favour: the fact that women were denied the vote until the twentieth century, for example, was not an argument against them obtaining it. Other, more substantial grounds are needed to defend the jury system.

The real world

In 2012 the experienced criminal barrister Felicity Gerry offered the following (Trial by jury: the importance of “ordinary” jurors, Halsbury’s Law Exchange, 8 February 2012):

“[J]udging their fellow man or woman, jurors bring to court their experience of real life.

I don’t know how many privileged people have had sex in an alley or taken cocaine or carried a knife for protection or, God forbid, had sex with a family member, but an understanding of real life, in all its shades, helps when considering issues in a criminal trial.”

With the greatest of respect, it is completely random how many – if any – jurors bring such experience, and it is not as though judges are completely inhuman either.  More to the point, judges in criminal trials will have spent years representing or prosecuting the worst elements of society and, far from being “out of touch”, will actually have much more insight into the lives of the average criminal than the sort of middle class married people commonly found on juries.

Moreover, if juries are there simply to determine guilt or innocence, rather than empathise with the defendant’s exotic peccadillos, then the more salty experiences they may have had should not be relevant to their task.

Independence

The next argument is that juries bring “independence” to the trial process, being the one link in the prosecutorial chain that is not in the pay of the state.  This of course ignores the basic principle of judicial independence as is now long established.  Judges nowadays have fixed salaries and security of tenure. No-one has impugned judicial independence in the civil sphere or demanded that jury trials be reintroduced for civil disputes.  Nor is it true to say that criminal proceedings are necessarily more important than civil: that might be true of murder, but the fate of, say, someone’s house or their job in a civil action will be of greater importance to them than a criminal charge from the lower levels of offences triable by juries.  

Public confidence

If the public (howsoever defined) have more confidence in jury trials, then that would form a strong justification for juries.  But is this true?  There is no suggestion of a dearth of confidence in the civil sphere, which has long dispensed with juries save for the odd exception such as libel trials.  Nor is there a serious suggestion that the Court of Appeal, Criminal Division, lacks confidence even though it regularly overturns the verdicts of juries.  Since the 1930s it has done so on the ground of the evidence not supporting the verdict (as opposed to a defect in the trial process), when allowing appeals against conviction.  In more recent times even the once-hallowed principle of double jeopardy has been abandoned.  Neither step can really be said to have eviscerated public confidence or led to a feeling that elitist judges should have no place undermining the verdict of twelve good men (or women) and true.

Moreover, trials such as that of Pryce or other well-known examples of jury failures have eroded such confidence as there is in the system.  They might be thought rare – but perhaps should not be, given the Ministry of Justice study mentioned above.

If the public has more confidence in juries because they represent the verdict of twelve as opposed to one, then statistically there is not much to bear out such an assumption. 

Then there is the question of a bulwark against injustice: someone technically guilty but attracting moral sympathy might expect to escape a conviction due to a sympathetic jury.  Such cases are few and far between, morally and legally dubious, and not much of a counterpoint to the argument that juries are fundamentally flawed in the majority of cases. They would also have to be balanced against jury decisions which the public consider blatantly wrong, which occur as often as ones in which they ape the Chancellor’s foot and deliver a popular verdict contrary to law.

Further, there are forms of trial which are manifestly unsuited to juries – complex tax or accounting fraud cases – and surely the general public would trust the verdict of an experienced Chancery judge over lay people in such cases.

Some benefits

Were juries to be abandoned one immediate benefit would ensue: much of the law of criminal evidence could be abandoned.  Substantial savings in cost and time would follow, which would mean legal aid could receive some of the money (and would go further as trials would be cheaper) and the courts would get through cases much more quickly.

Some alternatives

There are already alternatives in the justice system to simply single judges or juries.  In wet shipping cases for years elder bretheren of Trinity House have (wholly uncontroversially) sat as assessors to assist the judge. In the Employment Appeal Tribunal it is common for two lay members to sit with one judge.

Or we might look to France, where the Cour D’Assises are composed of a jury of 6 jurors and a panel of 3 active judges at first instance, and 9 jurors and 3 active judges on appeal. A similar system here (though I see no need for a jury on appeal, as we do not have one now and there is no serious call for it) would address most of the above concerns about the flaws of juries whilst preserving the public confidence which – rightly or wrongly – seems to derive from the demotic element they involve.

The other alternative would be to reform the jury system itself, by requiring some form of qualification (see here for an interesting discussion).  This certainly has a precedent, albeit not a very good one, in that until recently jurors were required to be property owners and over the age of 21.  An IQ test would be an obvious though invidious alternative; perhaps a more palatable one would be some form of written test.  There would still be all manner of problems with such a measure, however, not the least of which being that it would give an easy escape route to those who cannot be bothered with their civic duty, and we would end up with juries about as representative as Justices of the Peace have been over the years. 

Another suggestion is for juries to give written reasons for their verdict.  The chaos that would follow in the form of appeals, reviews and public outcries needs no elaboration.

I must admit to wavering somewhat on the issue. Perhaps, rather like Churchill said of democracy, we may end up concluding that juries are the worst possible system except for all the alternatives. Or perhaps it is time to grasp the nettle and make a radical change that is overdue. 

Harassment and His Holiness: Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701

It is as well that one Mr Heafield did not get a job in the timber yards where I worked over a couple of summers as a student. For the majority of the staff and customers the use of the “f word” was not so much bad language as a way of life. It was rare that they would manage a sentence without it, unless a female was present, in which case it would be watered down to every other sentence. I was always amused by the fact that sometimes they could use it in a sentence as a substitute for the noun, adjective and verb and yet convey their meaning perfectly.


Heafield instead worked as a casual sub-editor at the slightly more rarefied atmosphere of the Times Newspaper in London. He was there during the time of the Pope’s visit to the United Kingdom in 2010. On the evening of 12 March the newsdesk was preparing a story about allegations that the Pope had protected a paedophile priest. One of the editors in the newsroom, a Mr Wilson (no relation), shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?” When there was no response he repeated the question more loudly.

Heafield, a Roman Catholic, took offence at this. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the employment tribunal for harassment and victimisation on the ground of his religious belief.

The definition of harassment at the time was contained in reg 5 of the Employment Equality (Religion or Belief) Regulations 2003 (since replaced by the Equality Act 2010). Regulation 5 provided:

“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -

(a) violating B’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

The tribunal adopted the same approach as had been followed under the Race Relations Act 1976 by the Employment Appeal Tribunal in Richmond Pharmaceuticals v Dhaliwal [2009] ICR 724:

“As a matter of formal analysis it is not difficult to break down the necessary elements of liability under section 3A. They can be expressed as three-fold:

(1) The unwanted conduct: Did the Respondent engage in unwanted conduct;

(2) The purpose or effect of that conduct: Did the conduct in question either

(a) have the purpose or,

(b) have the effect

of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her. …

(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”

The tribunal went on to hold that Wilson’s bad language was merely an expression of bad temper which might have amounted to “unwanted conduct”, but was not intended to express hostility to the Pope or Roman Catholicism. Element (1) of the test in Richmond Pharmaceuticals had therefore been established but not elements (2) or (3). Wilson had not known that Heafield was Catholic and, more to the point, there had been no anti-Catholic purpose in what he said. His use of the f-word was simply a manifestation of his stress at the time.

By a fairly tortuous route, the details of which need not concern us here, the matter ended up before the Employment Appeal Tribunal.

The Appeal Tribunal held that the employment tribunal had been plainly right in finding that, to the extent that Heathfield felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction. At para [10] of its judgment it stated:

What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.

The Appeal Tribunal went on to say that the facts of the present case were a good illustration of the kind of case in which the imposition of legal liabilities was undesirable and outside the scope of the legislation.

Element (2) had therefore not been satisfied and accordingly the appeal would fail without needing to consider element (3).

The case seems to me to be a victory for common sense. Far too often in different contexts courts have had to consider claims for compensation on the ground that someone has been “offended” without any more tangible loss or damage than that. One can no doubt conceive of situations in which such offence or hostility is generated that it amounts to harassment or an impossible working environment, but Heathfield’s case as presented to the employment tribunal came nowhere near.

Legend has it that during the infamous “Bodyline” cricket series between Australia and England in the early 1930s the England captain, Douglas Jardine, went to the Australian dressing room after a day’s play to complain that he had been called a “bastard” by one of the Australian team. He demanded an apology. The Australian captain turned around and shouted across the room “Alright, which one of you bastards called this bastard a bastard?”

History has not been enormously kind to Jardine, who is generally remembered as a pompous sort whose actions on and off the pitch were rarely to be admired. Mr Heafield should take note.

Publications

I have been published in the current edition of Criminal Law & Justice Weekly, vol 177, February 16 2013, p 105 on the proposed Alan Turing pardon. 

I am also published in the New Law Journal, vol 163, 22 February 2013, p 214, on the Parker-Hulme murder on which the film Heavenly Creatures was based.

Sport and the law: should performance-enhancing drugs be banned?

Following on from the Lance Armstrong scandal comes news that a major report into Australian sport has concluded that the use of performance-enhancing drugs (PEDs) is widespread throughout major events in that country. Before asking what can be done about this situation, it is worth considering whether anything needs to be. The issue of illegal drugs in general society is hotly debated in every respect – not least in the sense of whether any drugs should be illegal at all – and if anything the arguments about legalising sporting drugs are stronger. In a recent editorial in the New Zealand Law Journal ([2012] NZLJ 321), Bernard Robertson argues that objections to PEDs are rather reminiscent of the backward-looking geriatrics in Chariots of Fire complaining about professional coaches.


The primary objection to illegal drugs in society is that they harm the user and so, for paternalistic reasons, the state should ban them. In the sporting context this ignores two things. First, many PEDs are not otherwise illegal and so the state does not consider them to pose a significant enough health risk to warrant being banned.

Secondly, talk of the threat to the health of athletes ignores the fact that many sports at the highest level carry severe long-term health risks anyway. Gymnastics, for example, has well-documented risks of long-term serious back problems, as does weightlifting, or fast bowling in cricket. Then there is boxing, where brain damage is a mathematical certainty for professionals who have any sort of long-term career. In all of those cases, we leave it to the individual athletes to make the choice about how hard to train and therefore what health implications they are willing to risk. There is no principled distinction between the risks of boxing and the risks of taking PEDs; both are for the individual to judge. At most, the health risk of PEDs is an argument for athletes to be well-informed, so they may judge the trade-off between success when young and health issues when old. It is not a conclusive argument for PEDs to be banned as such.

The next objection is that PEDs give the athletes who take them an unfair advantage over those who do not. But, at the level of professional sport, many things also offer advantages to some countries and some athletes over others that no-one thinks of banning, primarily the quality of training facilities and coaching available. Some entire sports contain barriers to entry which preclude most of the world’s population from ever aspiring to compete internationally. The cost of an Olympic bicycle, for example, never mind the velodrome in which to ride it, is prohibitive for about 99% of the globe; so too rowing boats, equestrian facilities, sail boats and indeed most Olympic sports in which Great Britain tends to excel (Britain’s authorities having cleverly worked out that their great comparative wealth could enable them to invest in expensive niche sports where the number of competitors would be very few compared with cheaper events).

Unfairness, therefore, cannot by itself justify the banning of performance-enhancing drugs, or at least not without looking like an arbitrary decision compared with all the other equally unfair things currently permitted.

A related objection is that PEDs are “unsporting” in a broader sense. As Mr Robertson points out in the editorial mentioned above, this sort of objection is more than a shade redolent of the debates over amateur and professional sport in years past. For years the rugby union authorities stubbornly came out with pious utterances about money sullying the purity of sport, while they themselves pocketed salaries and bonuses as administrators quite happily. They also cheerfully ignored the fact that the concept of amateur status – the paradigmatic example of which was the distinction between Gentlemen and Players in county cricket – was originally devised as a way of keeping the working class out of sport because they could not afford the time off to practice.

There are two stronger arguments for banning PEDs. The first is that the paying public expects PEDs to be banned as “unsporting” whether there is a rational reason for it or not. Indeed, watching sport does not have to be a matter of hard logic, so reason does not have to have the last word. To the extent that there is a rational explanation, it would probably be along the lines that the natural admiration one has for great players does not exist so far as their achievements are down to PEDs as opposed to hard training or natural ability.

The second reason is that even if Britain convinces itself that PEDs should be permitted, most of the rest of the sporting world disagrees and so Britain will find itself a pariah if it legalises them. Again, the reasoned arguments for or against PEDs do not really come into it; if everyone else disagrees then Britain will have to go along with it in order to be allowed to play.

If those two points are accepted, however, it does not follow that PEDs have to be banned by the state as opposed to individual sporting authorities. The latter are better placed to judge what the public might or might not accept, and will learn swiftly by means of gate receipts if they get it wrong. It is already the case in that different substances are banned in some sports and not others. Anabolic steroids would not, one imagines, help someone play snooker, but drugs steadying nerves or sharpening senses might; the reverse would be the case for weightlifting. Individual sporting bodies cannot impose criminal sanctions but they can impose life bans and strip titles from competitors, which ought to be effective enough as a punishment. Then again, the individual sporting authorities may not (save in respect of very large and powerful ones such as in football) have the resources to police PEDs on their own.

Of course the ban on PEDs has resulted in an arms race between methods of detection and methods of evasion. Difficulties in enforcement are always cited as a reason for not banning drugs in wider society, though the point can hardly be decisive: if it was difficult to stop murder, it would not be a reason to give up trying.

As Mr Robertson cautions, allowing the state to interfere with sport is a dangerous move. We might agree with it helping sporting authorities eradicate PEDs. But it was the Communist bloc which provided the worst examples of the health of athletes being sacrificed for short term gains, and needless to say that was a result of the state believing it had a monopoly on what was best for everyone. Sport is normally, and rightly, considered a private activity constituted by a series of contracts between organisers, sponsors, players and the public; allowing the state to supervene requires caution to say the least.

Coda: an amusing legal story comes from the United States, where Mr Armstrong’s autobiography has been moved from the non-fiction sections of bookshops to the fiction sections. He is also apparently to be sued by readers who thought they were buying the former category of book and not the latter. It rather goes without saying that Mr Armstrong, though purporting to offer a true story of his career in his book, was not making some legally binding commitment in doing so. If it were otherwise, would there be a single memoir by a public figure of the past hundred years (or ever) which would not be vulnerable to the same challenge?

Bringing out the dead

I will be published in the next edition of the New Law Journal (vol 163, 8 February 2013, p 142) on the issue of digging up dead monarchs, in particular the failed effort to exhume Harold's purported remains, with a nod to the more successful (if increasingly distasteful) effort with Richard III ...

The Times goes to the legal naughty step: AI v MT [2013] EWHC 100 (Fam)

Update: this post has now also been published on the UK Human Rights Blog here.

The Times today deserves a spell on the legal naughty step.  Its headline announces that a judge's decision "opens way to divorces by Sharia". One might expect therefore to find that the judgment giving rise to the headline - the decision of Baker J in the Family Court in AI v MT [2013] EWHC 100 (Fam) - was about Sharia law, or otherwise had something to do with it.  In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.

The decision

The judge approved a final order in matrimonial proceedings by consent.  That consent order had arisen from the Beth Din.  It did not elevate the Beth Din to the status of the High Court.  To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):

[27] First, insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement. The parties cannot lawfully make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction is invoked: see Lord Hailsham in Hyman v Hyman [1929] AC 601.


[28] Secondly, save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration. Statute does otherwise provide in respect of applications for the summary return of children under the Hague Convention. Applications for summary return under the inherent jurisdiction, on the other hand, are to be determined by reference to the child's welfare, for the reasons explained by Baroness Hale of Richmond in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at paragraph 25:

"In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration."

[29] Thirdly, this court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths. But that respect does not oblige the court to depart from the welfare principle because, as explained by Baroness Hale in Re J at paragraphs 37 to 38, the welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices:

"It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child… We are not so arrogant as to think that we know best… Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one."

[30] Fourthly, it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage. As Thorpe LJ observed in Al Khatib v Masry [2004] EWCA Civ 1353 [2005] 1 FLR 381 at paragraph 17:

"there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process"

In international child abduction cases, the charity Reunite, has run a highly successful mediation scheme for a number of years. It is important to add, however, that, whilst the court will encourage parties to try to resolve disputes by agreement, and will permit parties fully to participate in any process designed to achieve an agreed settlement, including where appropriate a process established by the culture or faith to which they belong or adhere, it must be careful to avoid endorsing any process that has or might have the effect of ousting the jurisdiction of the court, particularly (but not exclusively) in respect of the welfare of children.

The effect

In other words, the parties chose to resolve their differences by means of the Beth Din, but they still required the court's approval.  The court happened to approve the Beth Din's ruling as reflected in the consent order, but it is the court's order, and not the Beth Din's ruling, that has force in English law.  True, this might mean that other religious rulings might in future be recognised in the same fashion, but the court's approval is not a rubber stamp. If for whatever reason (public policy, lack of valid consent by one or both of the parties, misrepresentation, whatever) that process offended English law then the religious tribunal's decision would not be recognised and would not then attain any status in English law.  Baker J stressed that the arbitration was non-binding, and it is clear (see eg para [37]) that he examined the outcome as closely as he would have a settlement reached by any other means.


Comment

Freedom of contract is a central concept under the common law.  Arbitration - in commercial or family contexts - is but a subcategory of freedom of contract.  Parties are free to agree on dispute resolution mechanisms just as they are free to agree on anything else - within the law. In the commercial world very sophisticated arbitration processes have developed over the years within different industries - shipping, commodity trading, whatever - and London is one of the great world centres for commercial arbitration.  Thus every working day in the city tribunals constituted by grain boards or oil traders or shipowners or whatever sit, hear evidence and decide the fate of many millions of pounds.  They will attempt to apply the law of the contract, which is often English law but by no means always - a Liberian shipowner might be involved in a dispute with a New York broker and a London insurer and the contract might state that New York law applies.  The decision of the arbitrators will be enforceable in English law if the English courts approve, and it might be challenged in the English courts under various (fairly narrow in the commercial context) provisions in the Arbitration Act. 

The key point is this: if the courts recognise and allow the enforcement of an arbitration conducted under (say) New York law, that involves no importation of New York law into English law.  It is simply a manifestation of the common law doctrine of freedom of contract. The parties agreed they would resolve their dispute under X arbitration process pursuant to Y system of law, and unless there is a good reason (such as the examples given above regarding duress or other circumstances in which the parties cannot in fact be said to have "agreed" despite the face of a contractual document) there is no reason why English law would not recognise it.

Returning to the family context, the courts are more wary of straightforward enforcement of apparent agreements presented to them by consent orders, because it is rare for both parties to be sophisticated entities with independent advisers and a long history of similar transactions between them.  It will be even more cautious where the parties purport to resolve their differences according to a different religious or cultural tradition, because, contrary to the odd scaremongering headline, English law will not allow what it otherwise considers persecution to be explained away for cultural or religious reasons - despite the fact that it normally tries to respect cultural and religious differences, as per the quote from Lady Hale in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 above (though I should note that I have some criticims of that judgment, which can wait for another day).  Thus, two parties could agree to a divorce under Lord of the Rings' law and if there was no counterveiling reason, the courts might well agree to a consent order based on the outcome.  But, for the reasons given above, that would not pave the way for fantasy books to become part of English law.

Qatar Law Forum 2012: Mansion House event

Also published on Halsbury's Law Exchange

Introduction


On Monday 17 December 2012, the Qatar Law Forum held a Symposium on the Rule of Law at the Mansion House, hosted by the Lord Mayor of London, Alderman Roger Gifford. The occasion was the visit to the United Kingdom by His Excellency Dr Ali Bin Fetais Al Marri, the Attorney General of Qatar and the UN Special Advocate on Stolen Asset Recovery.

The theme of the symposium was the rule of law and countering corruption in international business. The event was opened by speeches from the Lord Mayor, Dr Al Marri and his English counterpart Dominic Grieve QC. The Lord Mayor emphasised the close links between London and Qatar and the importance of trade to both countries, which has to take place within a sound legal framework.

Following opening speeches by the Lord Mayor, Dr Al Marri and Dominic Grieve, a panel discussion was held to consider three points:

1. Anti-Corruption – its place in the rule of law

2. International co-operation between anti-corruption agencies

3. The broader agenda – law, the rule of law, and why it is important.

Panel

The panel comprised:

• Michael Napier QC (chair)

• Sir Henry Brooke (President, the Slynn Foundation)

• Professor Jeffrey Jowell KCMG, QC (Director, the Bingham Centre on the Rule of Law)

• Professor Khawar Qureshi QC (McNair Chambers, Doha)

• Baroness Scotland QC (immediate past Attorney-General)

• Robin Knowles CBE, QC (Chairman, Qatar Law Forum Organising Committee)

Opening speeches

The Lord Mayor opened proceedings by emphasising the close links between London and Qatar. He also stressed the importance for business transactions of a proper legal framework governing business transactions, and the threat that corruption poses.

Dr Al Marri stated that there were two primary reasons behind the Arab Spring: (i) the absence of the rule of law and the ability of the state to provide justice; and (ii) corruption. When combined those two factors produced chaos. Although “freedom” was often cited in connection with the uprisings, it was not the real reason; the primary reason was the absence of justice.

He stressed that the United Kingdom should be proud of its judicial system, and that it had been prepared to lose the Second World War rather than abandon justice. The achievement of the legal system in the United Kingdom was an achievement for humanity, not just the United Kingdom.

Dr Al Marri then discussed the development of judicial independence and the preservation of justice in the United Kingdom. He identified some of the key steps which had eliminated corruption in the judicial sphere, such as the fixing of judicial salaries in 1803, and also more modern measures such as the Bribery Act 2010.

Dominic Grieve QC AG reiterated the Government’s commitment to combatting corruption and referred to the relationship between the United Kingdom and Qatar.

Panel Discussion

Following the introductory speeches the panel discussion began.

Baroness Scotland QC stated that a global consensus on the definition of corruption was nearing. The consequences of not addressing corruption were apparent to all, but there was no need to put up with it. She also referred to issues of asset recovery in the context of the Arab Spring, and the different systems of law involved.

Khawar Qureshi QC stated that there was a need for consistency in legislation, not exceptions such as immunity. The 2010 Act showed that bribery would not be tolerated.

Sir Henry Brooke stated that his concern was judicial corruption. The Rule of Law could not exist where it was present. It was rife in some countries, and tended to take two forms. The first form was straightforward bribery. The second was more insidious and took the form of veiled threats against judges that they should award cases to a certain party or things would be the worse for them or their families.

Sir Jeffrey Jowell QC emphasised two things: (i) legal certainty; and (ii) equality. These were fundamental values common to all nations. Both were distorted and abused by corruption.

Robin Knowles QC said that corruption damages all parts of the rule of law and combatting corruption accordingly entails all aspects of the rule of law. Both the causes and consequences of corruption have to be addressed.

The discussion was then opened to the floor. Lucy Scott-Moncrieff, President of the Law Society, stated that justice was needed at the lowest levels. It was not simply in the judicial process but in all of society that justice was needed. Khawar Qureshi QC gave an example of where a taxi driver had his driving licence confiscated without justification and told that he would have to pay a sum of money for its return – that sort of corruption throughout all society was inimical to the rule of law.

The panel were asked to identify the single most important challenge for developing countries with regard to combatting corruption. Baroness Scotland QC stated that all in society had to be engaged in partnership and co-ordination against corruption; it was not simply a matter for elites. Sir Jeffrey Jowell QC mentioned two different aspects: first, prosecuting offences of corruption; and secondly, standards in public life – the notion of “jobs for the boys” has to be eliminated.

The issue was then raised of international co-operation. Baroness Scotland QC said that we have to accept that the world has changed. It used to be the case that international law could be ignored, but no longer. The question arose as to co-operation between prosecutions in G8 countries. Khawar Qureshi QC agreed about co-operation and pointed to the Abacha prosecution arising out of Nigeria as a great success story.

Sir Henry Brooke stated that corruption could not be changed by a single organisation or agency; relevant national and international institutions had to have a collaborative approach. He mentioned the role of the judicial college; training courses by the Bingham Centre on the Rule of Law; and the Slynn Foundation.

Sir Jeffrey Jowell QC stated that there needed to be a situation where there was no place to hide for corruption.

The point was made that the Qatar Law Forum draws together people from across the globe, allowing discussion of the value of shared definitions. Dr Al Marri was correct that the English legal system was not simply the achievement and property of the English, but of the entire world. The same should be true for all anti-corruption agencies.

The question was raised as to whether a definition was needed of corruption and of the relevant agencies. Baroness Scotland QC said that there was a need to better understand other jurisdictions. She mentioned Switzerland and its procedures for freezing assets.

It was observed that corruption was based on secrecy, and the question was raised as to whether it is time to decrease the right to confidentiality over assets, tax arrangements and the like, in the interests of transparency. Sir Jeffrey Jowell QC noted that that was a very difficult issue, requiring further consideration. Sir Henry Brooke noted that he had an instinctive horror at organs of the state probing around the affairs of private individuals. Robin Knowles QC added that transparency was never enough, nor adding regulations; it was a matter of ethics.

Michael Todd QC observed from the floor that when one looks at anti-corruption agencies it was a matter of basic education, and installing the view that corruption was not the way to do business.

Dominic Grieve QC AG noted the difficulty of challenging in some countries the system of day to day business where a payment to a third party was the established way of operating, and deeply ingrained as such. It would not be considered corruption. The question was therefore how to change such a culture.

Baroness Scotland QC said that it was a question of culture. There was broader agreement on corruption than there had been ten years ago.

Robin Knowles QC said there was a need for a definition of corruption. It need not be just one country’s view, and we might not necessarily reach a definition at the first attempt.

The third question was then raised as to why the rule of law was important. Khawar Qureshi QC referred to the history of the rule of law and how all religious texts emphasised the need for law.

Sir Jeffrey Jowell QC stated that the rule of law was not a vague concept. It involved settled law, enforced by fair and independent courts, equality of enforcement and respect for human dignity. It was a key element in investment, economic security and growth.

Sir Henry Brooke questioned how the poor had access to justice. Baroness Scotland QC agreed, and stated that the rule of law was not just for the strong.

Robin Knowles QC said that the rule of law was not just the responsibility of political leaders, judges and lawyers. Rather, it was the responsibility of all – politicians, teachers, civil servants, journalists and so on.

Michael Napier QC concluded proceedings by referring to Lord Phillips’ statement that corruption was a disease infecting many. The depressing fact was that there were countries not concerned with corruption, and where there remained a need to pay officials. The Arab Spring was in part the result of corruption. The Bribery Act showed that corruption abroad would no longer be tolerated. Thus, new global regulations were being introduced. Qatar was a leader in the fight against corruption, and this short symposium reflected the desire to fight it.

A royal flush - the Tranby Croft scandal

I have been published in the New Law Journal on the Tranby Croft Affair - "A royal flush", vol 163, 18 January 2013, p 46

Eweida and others v United Kingdom Part III: some comments

Here is the final part of my article on Strasbourg's four cases this week. 

General observations


What does it mean to have a right to one’s religion? Generally speaking, two things. First, the state should not favour one religion over another. (We in Britain muddle along with an established church, it is true, which may be somewhat intellectually indefensible but falls into the category of Mostly Harmless, and I will leave it aside for now.) Otherwise everyone should be able to worship what they like and where they like within the law, and the law should treat all religions the same, meaning one group should not get state funding or otherwise preferential treatment over others.

Secondly, no-one should be discriminated against because of their religion. In the sphere of criminal law, the state should not impose harsher or lighter sentences because a convicted person happens to belong to a religion. In the employment context, no one should be sacked or disciplined in employment because they believe in X, Y, Z or nothing. It would be outrageous, say, for a bank to state that it will only hire Sikhs and not Hindus or anyone else, and quite properly the latter would have a legal remedy provided by the state via the courts.

We can all agree, I suspect, on that sort of direct discrimination as being plainly wrong. Beyond that agreement is a bit more tricky. My own general approach is set out in Chapter 27 of my book.  Let us now turn to the actual cases, which I have separated into two categories called the symbols cases and the refusal cases respectively.

The symbols cases

Normally it is up to the parties to an employment contract to agree on the terms and then either abide by them or end the contract and pay the other side compensation if the contract is not ended in accordance with its terms. The state’s interest is confined to ensuring that there is no direct discrimination of the sort mentioned above, so that the employer cannot refuse to hire a person because of their gender or race or religion or whatever – and equally so that the employee cannot say (for example) that she will not work in an office with people of a different ethnicity or refuse to serve certain customers for reasons that amount to unlawful discrimination. (The state might also be concerned with health and safety requirements, or a minimum wage, but again those need not concern us here.)

So far as uniform policies or dress codes are concerned, most employers will usually have a policy in place at the start. As long as the existence of the policy is made known to any employee before she signs her contract, and she has a chance to review the terms of the policy and negotiate any exception, it is difficult to see why she should subsequently demand the right to breach the uniform policy in order to display a symbol on religious or cultural or any other ground. The answer is for her to negotiate the agreement from the start. Obviously any sensible employer should not object to inoffensive or unobtrusive items like turbans or crosses, though of course that would not be guaranteed.

This is the approach which Strasbourg has now discarded, having stated (at para [83]):

“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”

The problem is that weighing an overall balance may be an interesting and challenging task for academic lawyers, but in many cases it will place a considerable burden on both employers and employees to determine whether any claimed interference with a right is proportionate. Sometimes the answer might be obvious, but there will no doubt be instances where well-meaning employers and employees will face uncertainty – as reflected in the differing outcomes in Eweida and Chaplin’s cases. It is not just employers who suffer when there is uncertainty in the law, but also employees, who would like to know where they stand. And if a dispute results in litigation then both will suffer the attendant cost and stress, whoever wins.

In Chaplin’s case the court decided, quite sensibly, that it could not second-guess the hospital authorities on what was safe and what was not. But what made the court think that it could second-guess BA’s corporate image? Something tells me the judges in Strasbourg have probably not spent very much time running a large multinational company or working in its PR department.

One of the reasons BA came unstuck in Eweida’s case was because it had permitted turbans and head scarfs, so there was a point of consistency between religions. But would it really have been better if it had said no turbans or headscarfs? The only difference with the cross was that it was disputed whether Christianity actually requires it. But neither employers nor courts are in any position to judge what a religion entails on the true construction of its scriptures. We might all agree that it would be reasonable for BA employees to be allowed to wear turbans if they wish, but that is an easy case, and as the old saying goes it is hard cases that make bad law (such as someone demanding to wear an offensive symbol or some bizarre non-religious one).

Maybe, therefore, it comes down to not much more than demanding a liberal dress code, or at the very least a consistent one in which either all symbols are banned or none.

Reverting back to classical contract law once again, it might also be said that Ms Eweida’s breach was so small and insignificant that it would not have caused BA any obvious loss (would a brace of passengers suddenly refused to fly because of the shock of seeing a cross?) and would not have justified terminating the contract. I would have thought it a de minimus breach. Even on a classical contract analysis, however, it would be necessary for the parties to judge what is and what is not a serious breach and that would not be so different from the test about whether a uniform policy complies with art 9.

So it seems there is no easy answer – one way or another we have to end up with someone picking and choosing what religious symbols are reasonable to allow and what are not. Given the inherent problems with such an exercise, there is all the more reason for the parties agreeing terms before one begins, and the courts requiring very good reasons indeed for either party wanting to change them afterwards. In other words, just as the Court allows or should allow a wide margin of appreciation for states, so the states in turn should allow citizens a wide margin of appreciation and presume as a starting point at least that parties should be bound by the terms of contracts they voluntarily conclude. This of course is not all one-sided: as well as protecting employers from employees suddenly making claims years after starting work, it also protects employees from having radical changes of policy foistered on them.

The refusal cases

The refusal cases can be answered more easily. In this context the clash has often been framed as between the right of a person to practice their beliefs, and the right of another person not to be discriminated against in the provision of public services.

It is no surprise that the UK courts and Strasbourg favoured the latter. Imagine for a moment that the employees had 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 have been given a short answer. So would a restaurant which said it was run by the former Dutch Reformed Church and wanted to exclude ethnic minorities as inferior people.

Moreover, the same answer would have been given if the employees had wanted to discriminate in the same way on non-religious grounds.

In Mrs Ladele’s case, there was an argument which appealed to the dissenting judges, namely that she had accepted her job before civil partnerships existed, so the employer should not have been entitled to rewrite her contract by forcing her to preside over them.

There is some cogency to this argument. Assume, however, that someone had been a registrar in the Southern States before the civil rights reforms, when mixed-race marriages were disallowed. Then assume they had run the same argument after the reforms. I doubt any sympathy would lie with someone who refused to perform mixed-race ceremonies due to ‘conscience’.

Epilogue

I have to plead that pressures of time and space preclude as full and thorough a consideration as I would have liked to have attempted. Some other interesting interpretations can be found here, here and here. As to be expected they do not all come to the same conclusions or use the same reasoning, showing how difficult this area of law has perhaps inevitably come. I also enjoy reading this column which regularly considers religion and the law issues, though I frequently disagree with the author’s conclusions.

Meanwhile, here are some thoughts on the hypothetical questions I set out on the first post in this series:

- Sarah the recent alcohol-averse convert should realistically have to end her contract and renegotiate a new one. But her employer Jack would be well advised to consider reassigning her to other duties, assuming that it is practical to do so and no other employees object. In other words he should consider the proportionality of Sarah’s request.

- Mohammed who does not want work on Sundays is out of luck if there is a business justification for it.

- Lucy the environmentalist will hang her case on Nicholson v Grainger, my thoughts on which can be found here.

- Ravi the convert will, like Sarah, have to get around the ruling in Mba.

- Bethan with the crucifix will have a strong case as her situation mirrors Eweida more closely than Chaplin.

- Brian the Judas Priest fan hasn’t got much of a case to say his musical tastes are equivalent to a religion. He snarls that “at least Judas Priest is real” and announces his resignation.

- Jennifer the druid has an interesting point in the light of this story.

- Fatima’s case for not serving homosexuals will certainly (and rightly) fail following on Ladele and McFarlane.

Meanwhile, Jack has given up hiring new staff and so gives Peter the bad news. This is the real point of my extended fable: discussions of rights tend to take place based on the assumption that the only consideration is striking the fair balance between competing human rights. In the real world, unless there are clear and workable rules about employment rights (whether the most fair imaginable or not), employers will not hire new staff, meaning fewer jobs will be created and existing workers will have to shoulder a greater workload each time the business wants to expand. We should not underestimate the importance of certainty in the labour market.