Without Prejudice

January 20 2012

Without Prejudice will be back on the podcast air properly in a couple of weeks in its panel format, but in the meantime Charon QC and I spoke last night about

  • the government’s justice and security green paper on “closed material procedures” in civil proceedings
  • Abu Qatada’s case in the European Court of Human Rights
  • this week’s High Court ruling granting an injunction to the City of London against the St. Paul’s Occupy LSX protesters
  • contempt of court online, and
  • Scotland’s referendum.

We enjoyed it – I hope you do too. Listen to the podcast in the player below – and remember you can subscribe through iTunes.

2012-01-20T01:25:12+00:00Tags: |

Sharia, divorce and arbitration

January 19 2012

On Monday the Guardian published this piece about Sadakat Kadri‘s claim that

Islamic law can be compatible with the toughest human rights legislation.

I doubt this very much; and I don’t think my or anyone else’s scepticism is the result of a lack of “sharia-literacy”. In a BBC Radio 3 interview last week with Anne McElvoy (from 28’35”) Kadri complained that Islamic law is too often seen as a monolithic, savage code. He argued that we need to appreciate its nuances, that it’s not simply about violent punishments, and that the claims of Islamists do not necessarily reflect the true sharia. To me this sounds like a hopelessly abstract apologia, and reminds me of those Trotskyists who urged me in the 1980s to stop worrying about the false Marxism practised in the Soviet Union, and learn more about the true revolutionary path. But that’s beside my point.

What interests me is what the Guardian report says about the status of sharia in the UK.

In 2008, Rowan Williams, archbishop of Canterbury, sparked controversy when he appeared to suggest that sharia law should be more widely adopted.

In fact, under the Arbitration Act 1996, the rulings of religious bodies, including the Muslim arbitration tribunal, already have legal force in disputes involving matters such as inheritance and divorce.

But this isn’t the position in fact, as regards divorce.

The solicitor David Hodson has argued that legislation is needed so as to permit binding arbitration in  family matters. That’s a change that would be needed because it’s well established as a matter of common law that the courts will not simply recognise and apply an agreement between wife and husband about what should happen on divorce. In Edgar v Edgar [1980] 1 WLR 1410 Lord Justice Ormrod said

it is common ground that the principle laid down by the House of Lords in Hyman v. Hyman (1929) AC 601, still applies. At page 64, Lord Hailsham L.C., said,

“However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.”

It’s this rule that has stood in the way of recognising pre-nuptial agreements in this country, as Christopher Sharp QC explained in this 2009 paper.

The position’s sufficiently clear for Jack Straw, when he was Lord Chancellor and Justice Secretary in 2008, to answer a question from Dominic Grieve in these terms:

In the past year the Ministry of Justice has received a number of requests for information and details of policy relating to Sharia law and Sharia councils and their position on family issues …

Arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings.

The Guardian piece ends by setting out the supposedly “top five sharia myths”. But perhaps the most common sharia myth in this country, and one that’s been developing partly as a result of inaccurate comment, is that sharia decisions on divorce have legal effect through the Arbitration Act 1996.

2012-01-19T12:58:13+00:00Tags: , |

Children’s Rights Alliance v Justice Secretary: campaign groups and human rights

January 17 2012

It’s not unusual nowadays for campaign groups of all kinds to take judicial review proceedings against public authorities: it’s now well established that their knowledge of and involvement in matters of public interest means they can have a sufficient interest entitling them to challenge public law decisions within the area of their expertise. The key case establishing the principle in the mid nineties was the Pergau dam case – R v Foreign Secretary ex parte Word Development Movement.

But things are different under the Human Rights Act 1998, as last week’s judgment in the Administrative Court in Children’s Rights Alliance v Justice Secretary reminds us. The Children’s Rights Alliance were trying to force the Ministry of Justice to track down and contact people who may have been subjected to unlawful restraint while in Secure Training Centres as youths, between 1998 and 2010.

Mr Justice Foskett decided to look at the case on its merits – and rejected it. There’s no requirement on ministers to go through this exercise of tracing and contacting those who may have been unlawfully restrained, whether under the Human Rights Act or common law.

But in any event, he concluded, he would have been obliged to throw the case out as far as it related to human rights, because the CRA was not itself the victim of any human rights breach. Section 7 of the Human Rights Act 1998 says that

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.

and

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

The European Court has a fairly flexible approach to what makes you a victim; but this doesn’t extend to allowing applications by campaign groups acting on their own, on behalf of those whose rights they say have been breached. Of course if a campaign group’s own rights have been curtailed – its freedom of expression, for instance – then it is itself the victim of an alleged breach, and can use human rights arguments in court. That’s what happened for instance in R (Animal Defenders) v Culture Secretary [2008] UKHL 15. But it’s not what happened in this case.

The answer under section 7 is clear: the CRA was not the victim of any unlawful restraint, and so could not rely on human rights arguments to force the Secretary of State to do anything (see paragraphs 212-225 of the judgment).

Foskett J made it clear he thought this was “unfortunate” and that he reached his conclusion with little enthusiasm (paras. 223-4). But since that is the law, was it a good use of public resources to hold a three-day hearing, much of which must have been dedicated to the very human rights arguments that the CRA could not lawfully advance?

2012-01-17T17:13:34+00:00Tags: , , |

R (Bailey) v Brent: law against the cuts (and politics)

December 20 2011

As a resident of Brent in north-west London, I’m not sure what I think about the Labour council’s planned library cuts. I’m not happy that any should be cut. I don’t want social care to be cut any more than it needs to be, either, or any of the other important things councils do. And I think libraries could be cheaper and better by going back to basics and focusing solely on books – rather than increasingly becoming all-purpose community, youth and IT centres, which is what Willesden Green library sometimes seems like. Anyway, I have some sympathy with the campaign against the cuts, without thinking libraries (any more than legal aid) should be prioritised above all other public services.

I’m writing about this because of the failure, yesterday, of the appeal in the judicial review taken by campaigners against Brent Council’s decision. Regardless of my views on libraries, I’m pleased the appeal has been dismissed.

The claim was made on a number of grounds, but the main one was that the council had breached its duty under section 149 of the Equality Act 2010, by failing to have due regard to the the need to eliminate race discrimination. Indirect discrimination arose, it was argued, because it seems 46% of borrowers from Brent libraries are Asian, although Asians make up only 28% of the population of the borough.

I think there’s something funny about this approach to indirect discrimination, to be honest: of course a statistically-proven disparate impact on different groups can amount to indirect discrimination – that I don’t doubt. But, as I read the judgment, like Lord Justice Davis (para. 97)

I became increasingly doubtful if this argument on behalf of the appellants could be right; and in fact I have arrived at the view that it is artificial and wrong.

I’m still trying to work out where I think the “funniness” is found. The council argued that the closures were not intrinsically liable to affect Asian people more than anyone else, and I suspect this may be the answer, or something like it, though none of the judges seems to have agreed. In any event, though, the real complaint about the closures has nothing whatever to do with race discrimination – which is what lends this case a distinctly straw-clutching unreality.

The real problem with this approach to law – politics continued by whatever legal means are necessary – is the debilitating effect it has on politics, and on democracy itself. Most people agree, if challenged, that local democracy is sick, and should be revived. We agree power is too centralised, and ought to be devolved. There’s absolutely no point in thinking that, though, if you’re happy with councils’ decisions being constantly at risk from purely tactical legal challenges, in a continual game of jenga. Ultimately that has a chilling effect on local policy-making.

We have to accept, in a democracy, that politicians will make decisions we don’t like. If we can’t, and instead turn increasingly to tactical legalism in effect as a replacement for politics, we’ll deserve a less political, more centralised and less democratic society.

2011-12-20T18:50:51+00:00Tags: , , |

Al-Khawaja & Tahery v UK: Lord Irvine vindicated

December 15 2011

In his lecture last night, Lord Irvine invited British judges to become more assertive in deciding human rights cases for themselves, agreeing or disagreeing with the European Court of Human Rights, as they see fit. Today’s judgment from the European Court in Al-Khawaja & Tahery v UK vindicates, at least in part, Lord Irvine’s claim that such assertiveness might succeed in influencing the Strasbourg court.

The case was about whether it breaches the Article 6 Convention right to a fair trial if, when a witness in a criminal trial is unable or unwilling to give live evidence, either because she is dead, or because he is afraid of reprisals, his or her witness statement is accepted as evidence instead. The fairness issue is, of course, that the witness cannot be cross-examined; his or her evidence cannot be fully challenged or undermined by the defence. When the court gave its initial chamber judgment, it effectively ruled that Article 6 would be breached if a conviction was based

solely or to a decisive degree

on the witness statement.

The UK Supreme Court could not accept the apparently absolute nature of this principle, and in Horncastle [2009] UKSC 14 it refused to follow it. Lord Phillips said, referring to section 2 of the Human Rights Act 1998,

The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.

Well, now the Grand Chamber has looked again at Al-Khawaja & Tahery, and has accepted, at least in part, and by a majority of fifteen to two, the Supreme Court’s criticisms. The key paragraphs are 146 and 147:

It would not be correct, when reviewing questions of fairness, to apply [the “sole or decisive”] rule in an inflexible manner. Nor would it be correct for the Court to ignore entirely the specificities of the particular legal system concerned .. To do so would transform the rule into a blunt and indiscriminate instrument ..

The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny .. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.

A partial retreat by Strasbourg, then, from an apparently inflexible rule to a principle requiring “the most searching scrutiny”; and a result for the assertive judicial approach tried in Horncastle and recommended by Lord Irvine last night.

There remains a problem, though. While making this principled retreat by a majority, the court nonetheless unanimously found a breach in Tahery’s case, and awarded him €6,000 in damages and €12,000 in costs. It’s not easy to see why the court should have decided by a majority that Al-Khawaja’s trial was fair, and Tahery’s unfair: the only relevant differences seem to be that in Al-Khawaja’s case, there was additional hearsay evidence of what the deceased had said to her friends, which largely backed up her witness statement; and another woman said she’d suffered a similar indecent assault by Al-Khawaja.

The European Court’s approach to Tahery’s case, in which the one witness who told police he saw Tahery stab the victim was too afraid to give evidence, causes real concern. Although it does not seem that the threats to the witness in this case came from Tahery, on the ECtHR’s approach, intimidation of crucial eye witnesses is allowed to succeed – on human rights grounds.

Given Lord Irvine’s speech last night it’s worth considering what impact this case has in domestic law, in any event. Tahery gets a minor windfall (€6,000, while not a big sum of damages, is a non-trivial amount for most convicted criminals), but his conviction stands. More importantly, if Lord Irvine’s assertive approach is taken seriously, domestic courts in future cases in this area should rely on Horncastle – not on this new judgment from Strasbourg.

Because this is an “application breach” type of case – in other words, what is complained about is a not a systematic breach of Convention rights automatically caused by UK law, as for instance in the case of prisoners’ voting, but merely that a particular ruling on evidence in one case was unfair – there is little or no risk of any ongoing stand-off or “dialogue” between Strasbourg and the UK courts developing into a major question of international human rights compliance.

2011-12-15T15:57:39+00:00Tags: , , |

Lord Irvine: British judges should decide human rights cases for themselves

December 14 2011

Lord Irvine tonight weighed in to the debate about Britain’s relationship with the European Court of Human Rights – and effectively accused the Supreme Court of having surrendered its intellectual independence, and shirked its judicial responsibility.

His at times toughly-worded lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law chimes with what the Attorney General Dominic Grieve has been saying recently about the need for primary responsibility for human rights protection to lie with states, not Strasbourg – and Grieve will surely approve of both the content and timing of Lord Irvine’s intervention, on the eve of the European Court’s ruling in Al-Khawaja and Tahery v. UK and in the context of Britain’s chairmanship of the Council of Europe. I’ll link to the text of his speech when it’s available.

Lord Irvine stressed his

unswerving support

for the ECHR and the Human Rights Act, but made clear his view that British judges have shown too much deference to the Strasbourg court – more than the Human Rights Act 1998 requires or entitles them to show.

He said of section 2(1) of the Act that “its terms are simple”,

(1)   A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)   judgment, decision, declaration or advisory opinion of the European Court of Human Rights ..

and that it was “surprising” it’s given rise to any difficulties. He asserted repeatedly that it was clear from its wording and from the Parliamentary record that Parliament intended domestic courts to “have regard to”, to “consider” or to “bear in mind” Strasbourg judgments. He said

It is untenable to suggest that judges are entitled to treat themselves as bound

by them. The courts have, however, he argued, strayed considerably from what Parliament intended.

Lord Irvine said the problem began with what Lord Slynn said in his speech in Alconbury [2001] UKHL 23 at paragraph 26:

Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.

This, according to Lord Irvine, was

an unwarranted gloss on the statutory words

which has, since, led judges to proceed on the false premise that they are some sense bound or “as good as bound” by ECtHR rulings. He cited as an example Home Secretary v AF [2009] UKHL 28, in which Lord Hoffman said (paragraph 70), agreeing that AF’s appeal had to succeed because of the European Court’s ruling in A v UK, that

I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.

Lord Irvine pointed out that in that same case Lord Rodger, at paragraph 98, said that

Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.

Lord Irvine also identified what he called a more nuanced variant of this idea, in the Supreme Court’s judgment in what he called “the culmination of a notorious line of cases” on housing (covered in depth at Nearly Legal) Manchester City Council v Pinnock [2010] UKSC 45. The Court said at paragraph 48 (in a judgment written by Lord Neuberger),

This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47). Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator[2004] UKHL 26; [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to “take into account” EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.

Lord Irvine objected that Lord Neuberger had not explained why this would be “wrong”; and he criticised the idea that there is any “magic” in the fact that Strasbourg has issued a “clear and constant” line of decisions, which he said might just amount to

extended repetition of error

and said there’s no “alchemy” by which Strasbourg’s constancy changes the nature of the judicial task under section 2 of the Human Rights Act.

He said Lord Hoffmann had been led into error by excessive concern for the UK’s standing in international law, which he said ought to be no concern of domestic judges, who should avoid

straying into questions of foreign relations and statecraft

and should not attempt to short-circuit the international enforcement mechanisms of the Council of Europe. In any event, he argued that if judges seriously disagree with a ruling by the European Court of Human Rights, they should not simply “acquiesce to Strasbourg”.

Lord Irvine argued that part of the problem was the extent to which judges are steeped in the doctrine of precedent and judicial hierarchy, which has led them to see themselves as in a “subordinate” or “vertical” relationship to Strasbourg. Mentioning cases in which he said Strasbourg had rejected the balance of policy interests struck by British courts – S & Marper v UK and Gillan & Quinton v UK – he said British judges should be more assertive, or else they

should not be surprised to find themselves rolled over with increasing regularity.

He called for domestic courts to act, and be seen to act, as autonomous; and said it would damage their credibility if they appeared merely to be agents or delegates of Strasbourg. This was strong stuff; and Lord Irvine seemed to get more vigorous in his criticisms as his lecture went on.

Notably he criticised Lord Bingham (“even Homer nods”, he remarked) for what he said in Ullah v Special Adjudicator [2004] UKHL 26, at paragraph 20:

a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

Lord Irvine clearly disagreed flatly will all of this “prevailing orthodoxy”, pointing out

the enervating effect of this reasoning

in Ambrose v Harris (Procurator Fiscal) [2011] UKSC 43, in which Lord Hope seemed afraid (paragraphs 67-72)

to go further than Strasbourg has gone

as he put it more than once. Lord Irvine singled out for praise Lord Kerr’s dissenting judgment in that case, in which he said at paragraph 130

it would be particularly unsatisfactory, I believe, if, because of an Ullah-type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09, BAILII: [2010] ECHR 1373 and we cannot say how Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.

Lord Irvine stressed that domestic judges should not follow the “path of least resistance” offered by Ullah, but that, as he put it more than once, they must “decide human rights cases for themselves”:

This – no more, but certainly no less – is their constitutional duty.

2011-12-15T01:19:48+00:00Tags: , |

“Prior protection”: Davies and Campbell are right

December 2 2011

Alistair Campbell blogged yesterday about his appearance and evidence to the Leveson inquiry. He had plenty to say, but I won’t repeat it – read the transcript of his evidence, and the statement he provided.

What interests me especially is what he writes in that blogpost about the regime of regulation that should replace the PCC. He says

PCC replacement body should be established by Parliament but independent of all political and all current media interests. No serving political or media figures on it.

The PCC code is an excellent basis for a new code of standards, but should be reviewed to take account of the technological changes, eg internet, and of recent events examined by the inquiry.

It should have the responsibility, and the power, to see that the code is upheld. Including the power to fine owners, editors and journalists for serious breaches of the code. It should have the power to order placement and wording of corrections and apologies, and to adjudicate in cases where a right of reply is being refused.

Apologies should be given the same prominence as an inaccurate story, and the victim given a major say in how it is presented.

I agree with all that. This is just the kind of independent, effective statutory regulation that’s needed.

He says something else, though, with which I agree, if anything, even more strongly:

The replacement body might be the body to pre-adjudicate on privacy/public interest cases. I supported the idea Nick Davies of The Guardian had mentioned of a pre publication arbitration body to which journalists and the subjects of their stories could go for an opinion on the public interest.

This is an idea I’ve argued for before – I remember doing so in a BBC Radio Ulster discussion with Roy Greenslade and Max Clifford in May.

Most journalists recoil in horror at the suggestion of anything that smacks of “prior restraint” – the idea that stories should need approval from a judge before they can be published – or a duty to pre-notify stories to anyone whose privacy might be affected, as Max Mosley argued in the European Court of Human Rights, so as to allow them to rush to court before publication. But what I argue for, and I think what Nick Davies and now Alistair Campbell are suggesting, is quite different.

The idea is that newspapers should have the option of getting prior clearance of stories that might affect privacy or reputation. The system should be entirely voluntary. The system would involve the submission of the precise text of a story, with any photographs, audio or video to be published with it. The editor of the publication would explain the evidential basis of the story and what had been done to check it and provide an opportunity to comment – in other words, he or she would go through the “Reynolds” list of factors, explaining why the story amounts to responsible journalism. If the judge, or panel, or regulator agreed, the text and media approved, without alterations, could be published immediately.

Crucially, that publication would then be protected from any privacy claim, unless it could be proved that the regulator had been lied to at the clearance hearing. Any claim based on privacy or defamation would be struck out unless the claimant succeeded at a preliminary hearing in proving that the decision-maker was misled.

This is the opposite of prior restraint: in fact it’s what I’d call “prior protection”. I realise the system I’ve outlined raises many questions (could clearance be granted in an “ex parte” hearing, or would the subject of the article have to be given notice, for instance). But I think something like this could actually reduce the chilling effect on free speech that must result from uncertainty about the prospects of being sued.

2011-12-02T19:28:58+00:00Tags: , |

Lady Hale’s injudicious speech

December 2 2011

Does Lady Hale wish she were still sitting in the House of Lords, rather than the Supreme Court? Earlier this week she gave a striking speech to the Law Centres Federation conference. She opened her remarks by saying

It is not the proper role of any judge to attack Government policy

yet went on to say the government’s plans in the Legal Aid, Sentencing and Punishment of Offenders Bill to cut legal aid by excluding specific areas of law from its scope is

fundamentally misconceived

and showed clear sympathy for critics of the bill in the House of Lords:

the best protectors of the rights of the marginalised and vulnerable in society are not our elected representatives but the unelected mix of the great and good and the superannuated who populate our upper chamber. Where would we be without them?

Here’s the text of her speech, with some comments from me. I wasn’t there – so can’t tell you whether she departed from it at all.


Many lawyers will cheer Lady Hale’s clear opposition to legal aid cuts – for many, this is the least controversial position any lawyer can take. Against the background of widespread opposition to them from the great and good at the Law Society and the Bar Council, and especially given the government’s sudden and unexplained postponement of its planned implementation, Lady Hale’s speech will seem to many an unremarkable contribution to the debate. But I think it’s more than that.

The Guide to Judicial Conduct says, at paragraph 8.2.1, that

many aspects of the administration of justice .. are the subject of necessary and legitimate public consideration and debate in the media, legal literature and at public meetings, seminars and lectures, and appropriate judicial contribution to this consideration and debate can be desirable .. There is no objection to such participation provided the issue directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice.

so it’s okay, in principle, for Lady Hale to express some thoughts about the government’s plans, and perhaps warn of some of the difficulties she foresees for the operation of the courts. But the Guide goes on, at para. 8.2.2:

Care should, however, be taken about the place at which, and the occasion on which, a judge speaks so as not to cause the public to associate the judge with a particular organisation, group or cause. The participation should not be in circumstances which may give rise to a perception of partiality towards the organisation .. , group or cause involved or to a lack of even handedness.

I wonder whether Lady Hale really took the requisite care on this occasion. In spite of her own words she clearly attacked government policy on a matter currently before Parliament, and in circumstances that surely give rise to a perception that she’s partial to the cause of opposing legal aid cuts.

I never thought we needed to create a Supreme Court – but we did, and in doing so more clearly separated our judiciary, whose most exalted members used to sit in the House of Lords and contribute to its debates, from both government and Parliament. Lady Hale’s apparent nostalgia for the old days seems to me dangerous: if judges take publicly political stands, calls will increase for them to be subject to a public confirmation process such as happens in America. The judiciary will be more politicised than ever.

This was an injudicious speech.

2011-12-02T15:24:28+00:00Tags: , , |

Grieve: Contempt of Court Act “fit for purpose”

December 1 2011

This evening the Attorney General Dominic Grieve has been speaking at City University on the subject “Contempt – a balancing act”.

Here’s the draft text of his speech – it differed only slightly in delivery. In the document viewer below you’ll find my note of the most important additions and changed he made, and some of my comments on specific passages.


The Attorney explained that he thinks there’s an increasing tendency for the press to test the boundaries of what’s acceptable – and he identifies the Criminal Justice Act 2003, which made new statutory provision for the admission of bad character evidence in criminal courts, as possibly having influenced media attitudes. He said in answer to a question after his speech that he believes

the Contempt of Court Act is “fit for purpose”

but he made it clear in the speech itself that he’s been concerned to see

some clarity .. reintroduced

and listed the contempt cases he’s already taken – against the Daily Mail and the Sun, against the Mirror and the Sun again in the case of Christopher Jefferies and the “Facebook juror” case.

The Attorney said he’s aware that many in the press would welcome more “advisory notices” from him – warnings when reporting is straying into contempt territory – and, while being clear that he’s not not the media’s lawyer, he said he’s considering at the moment how he can assist with this. An interesting insight, that, into a media that clearly would welcome positive regulation more than you’d think from some public reactions to the Leveson inquiry.

He made a strong moral appeal to the media, as well as a legal one –

there is a moral imperative in all of this – the need to observe common decency when reporting

As well as signalling his wish to engage positively with the media, Grieve gave a number of warnings.

First he made it clear a number of times that the proceedings are active, for contempt purposes, from the point of arrest, before charge. He’s clearly concerned about press behaviour during this period especially.

Second, he gave a more gentle warning that he’s aware of the potential for blogs to go viral – and that they, too, can breach the law on contempt. More than once he emphasised that the internet is not a law-free zone, and in answer to a question he made clear that

bloggers are not immune from the law.

In addition, though, in a clear reference to John Hemming MP (though without naming him) the Attorney made clear his view that it serves Parliament ill

if court orders are openly flouted by MPs “for no good reason”

and he reminded his audience that MPs who do not respect the principle of “comity” between Parliament and the courts can be punished – by Parliament itself.

An interesting speech, this, setting Grieve’s stall out clearly as an Attorney who knows he can’t stop every risk of prejudice to trials in the multinational, new media age, but who’s clearly determined to do what he can.

2011-12-02T12:44:23+00:00Tags: , , , , |
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