You’ve not heard much from me recently – I was taking advantage of the silly season to catch up with other things. And my blog break is going to continue for one more week, because I’m going to take a complete break from it all, and may not read the interwebs at all. It’ll be good for me.
I’ll be back and full of legal thoughts later in September.
It appears that the Scottish Justice Secretary Kenny MacAskill is likely to announce today the release on compassionate grounds of the man convicted of the Lockerbie bombing, Abdel Baset Ali al-Megrahi. British justice ministers are obviously feeling quite compassionate this summer.
I’m against this move. Some will argue that al-Megrahi is innocent anyway, and that his original, unusual trial and conviction in 2001 (in a Scottish court sitting in the Netherlands without a jury) was unfair. Maybe; but the way to settle that would be by appeal, an appeal al-Megrahi has now abandoned. It would be quite wrong to allow any doubts about his guilt to affect a decision that should be purely about whether his terminal cancer means he ought to be set free.
I don’t think it does. Professor Karol Sikora, one of Britain’s leading cancer specialists, may think al-Megrahi has only a “very short time to live”; no doubt he’s right. But I don’t take as gospel everything doctors say, however expertly and sincerely, about prisoners they examine. Anyone who remembers the Ernest Saunders case is always likely to wonder whether a prisoner is really as ill as his doctors say, and I think Professor Sikora goes too far in pressing the Scottish government to make an “urgent decision”. His role is simply to give his medical prognosis: I’d have more confidence in that if he left it to others whether and when any decisions should be taken. In any event, this does not seem to be a case, like Biggs, of a man confined to his bed unable to speak. Indeed it seems the prisoner was able to speak to the minister only days ago.
If al-Megrahi is flown to Libya tomorrow, as it seems is intended, then he’ll be beyond the reach of any license such as applies in Ronald Biggs’s case. A miraculous recovery, or even simply an easeful and longer than expected departure from this world, would take place far beyond the practical reach of Scottish justice. And al-Megrahi is a much worse offender than Ronald Biggs. Like Biggs, he owes us years of his unserved sentence. Unlike Biggs, though, he also murdered 270 people – most of them Americans.
Which is why American politicians have reacted angrily to the prospect of the release, Hillary Clinton saying release would be “absolutely wrong”, and a group of senators including John Kerry and Edward Kennedy writing to MacAskill this week to make their opposition clear. I understand their view, and I agree with them.
If the decision is part of a deal with Libya, perhaps relating partly to oil, then of course it would be disgraceful and shameful. But it’s disgraceful and shameful anyway. Had all those 270 dead been Scottish, does anyone think Kenny MacAskill would be doing this?
Having written about asylum detention yesterday, an interesting Employment Appeal Tribunal judgment caught my eye today. Father Seraphim Vänttinen-Newton, a Russian Orthodox priest, has won his appeal for unfair dismissal against GEO Group, the private firm that runs Campsfield House Immigration Detention Centre (or “removal centre”, as the UK Borders Agency website calls it).
Father Vänttinen-Newton was chaplain at the centre; how many of the couple of hundred detainees practice the Russian Orthodox faith, I have no idea. He gave a short interview to BBC Radio Oxford about “faith in the workplace” – a pretty reasonable thing for a chaplain to do, it seems to me, but which led to his being sacked for breaching the rules in the staff handbook, which say
Dealing with the media: No employee of Geo is authorised to make any comments or to give any interviews to the media without prior and express permission of the managing director. Any employee who is approached by any media must refer the person to a senior manager at the earliest opportunity.
Interesting, this: are GEO so paranoid about criticism of the regime at Campsfield that they have to take such a controlling approach? I would have thought it against the public interest for the company to be able to enforce contractual obligations of that kind so as to censor what a chaplain says in public about conditions in any prison or detention centre. It’s obviously in the public interest that someone in that position be able to speak freely.
What’s especially interesting is that no one at GEO actually listened to what the chaplain said in the interview, or sought a transcript from the BBC. They had no idea whether he said anything critical at all. Which is why the EAT has ruled the dismissal unfair.
I must say I can’t understand why the EAT thinks Father Vänttinen-Newton bears 85% of the responsibility for his dismissal (para. 32 of the judgment): GEO’s prior restraint on interviews of any kind (and note, the staff handbook does not expressly limit the restriction to interviews about work) seems to me unreasonable and disproportionate, especially when applied to someone like a chaplain. I wonder whether allowing it to be 85% effective isn’t a breach of Father Vänttinen-Newton’s article 10 freedom of expression (and indeed the public’s right to receive information freely).
Also interesting is that the latest report on Campsfield by the Inspectorate of Prisons from May last year tells us detainees aren’t satisfied with chaplaincy services; I doubt the firm control GEO exerts over its chaplains’ public statements helps give them faith, as it were. Campsfield is next due to be inspected in October: let’s see what the chaplaincy survey says.
It’s frustrating and dispiriting to read the judgment in R (Rostami) v Home Secretary. And I think difficult to work out what you think about the problem of asylum detention generally.
On one hand, it’s difficult with any humanity to face the prospect of detaining someone indefinitely, when he’s committed no offences (apart from the offence of failing to cooperate with removal procedures), because his asylum claim has failed and his lack of cooperation means he cannot be returned to his own country. At what point does it become unreasonable to use detention as a means of forcing him to cooperate? Are we prepared to face the possibility of keeping someone locked up for life? When he’s already shown a tendency to self-harm when in custody? I’m uncomfortable about using power attritionally to that extent, and in circumstances like that, especially when there is some research that suggests most asylum seekers, even as many as 80% of those due for removal, cooperate with the authorities when released from detention, rather than absconding.
On the other, can we really accept a situation in which someone who’s failed to establish any right to be in this country can nonetheless succeed in remaining simply by refusing to complete a form?
It’s a real policy challenge, this.
The Liberal Democrats have today called for better supervision of the use of surveillance powers: they think magistrates should have to approve any use of legal powers of surveillance. Fair enough; I’m not sure how well Magistrates’ Courts could cope with these applications, but with the principle I have no problem. Nor do I dispute that these powers – like any other special powers any public authority has – may be and probably are regularly abused. It’s right to try and shape the system to prevent this as much as possible. It’s important for instance that those who are responsible for using the powers are properly trained in the legislation – according to the Chief Surveillance Commissioner in his 2008-9 report, not all police forces or senior police officers take the training seriously, even though proper training seems to improve compliance with the law.
What I do have a problem with, though, is the suggestion often made in the debate around these powers that surveillance should not be used to tackle supposely “trivial” offending and anti-social behaviour – examples often cited are dog fouling, neighbour nuisance, fly-tipping and cheating on school admissions.
I don’t see these things as trivial at all; nor do I think it makes any sense to see them as no-go areas for surveillance. You can only think noisy neighbours are a trivial problem if you’ve never lived next to one, and never had council officials telling you there’s nothing they can do. You can only be confident that school admissions cheats are harmless if your child hasn’t been turned down for the school of your choice. And you can only see things like fly-tipping as trivial if you think environmental law is a waste of time, and we should all be free to pollute wherever we like.
We have choices here. We could just abandon any attempt to be fair in allocating school places. We could happily allow public spaces and the countryside to be made filthy by people who don’t care, and allow residential areas to be plagued by home DJs. I wouldn’t want to live in that society, mind. If like me you think laws on these matters should be respected and enforced, and you want to give councils the job of enforcing them – then councils should be allowed the tools to do so.
Ronald Biggs has been released, then, Jack Straw having decided he could now be released on compassionate grounds, rather than on parole, which he earlier refused. Straw’s statement explains the new decision in terms of the different criteria he had to take account of in relation to the two issues.
The statement also makes clear Biggs has been released on licence. The power to release is under section 248 of the Criminal Justice Act 2003, while the standard licence conditions are contained in the Criminal Justice (Sentencing)(Licence Conditions) Order 2005. Straw’s statement makes clear no further conditions have been imposed. It’s interesting to note that, although the standard conditions restrict his movements in the sense that he must reside at an address approved by the Probation Service (Norwich University Hospital, presumably) and can’t stay overnight anywhere else or travel outside the UK without permission, nothing in law prevents him leaving the hospital grounds for the day. Presumably his condition prevents him in practical terms from leaving his hospital bed. We’ll see.
So, Biggs tastes his last draught of freedom after all. I suppose if the only practical difference this makes is that prison guards leave Biggs’s bedside for his dying moments, then even I am reasonably content. It’s true Biggs is far from the Yorkshire Ripper category of offender, and I know some argue, like Nick Cohen, that Biggs has always been treated unfairly and that his escape and lack of remorse for it should not be held against him.
Still, my feeling is that for the law to be respected it must be inexorable: I’d have made Biggs repay every moment of his Latin American debt of time, even if (since he’s in a hospital, not in prison) only symbolically. Perhaps I’m the only one who’d have applauded Jack Straw had he taken that hard line.
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Last week’s Court of Appeal judgment in Metrobus v UNITE must make frustrating reading for the union’s officials: it upholds King J’s grant of an injunction preventing bus drivers from striking in Croydon, Crawley and Orpington last autumn on the basis, firstly that UNITE had not promptly informed Metrobus of the result of its strike ballot, and secondly that its strike notice did not give Metrobus sufficient information to work out how many drivers at each depot would be called out.
Three arguments had persuaded King J to grant the injunction. First, although the strike ballot had closed at noon on 1st September, a mix-up between UNITE and Electoral Reform Services involving a missing fax was at least in part the cause of the union’s only telling Metrobus the outcome almost 48 hours later. That was too long. Second, the union’s correspondence did not properly explain how it arrived at its figures for how many drivers would be called out from which depots – although the Court of Appeal judges all disagreed about how the relevant legislation applied, the majority ruled that insufficient explanation was given. I expect unions are already drawing up guidance for officials about how to comply with this I think quite demanding requirement. The only point on which the majority in the Court of Appeal disagreed with King J was the importance of a statistical typing error – a UNITE secretary, Sandra Evans, had at one point typed 766 instead of 776. The Court of Appeal, surely rightly, thought this error far too trivial to justify an injunction.
The other interesting point about the case is that the Court of Appeal saw all the relevant legislation as compatible with the article 11 Convention right to join a trade union.
Earlier this week Charon interviewed Lord Falconer about his attempt to amend the law to legalise assisted suicide in some cases – they also discussed the new Supreme Court. It’s a good listen, timed perfectly for this week with the Purdy judgment being the Law Lords’ last.
You can hear the podcast here.
I’ve been slow in reacting to the Lords’ final judgment yesterday in R (Purdy) v DPP, partly because I was in Cambridge, but partly because I’ve been worrying at the judgment since I heard the news reports yesterday, and even more so since I read it. I’ve been worrying about what’s wrong with it. Because I think something is wrong, though I admit I’ve not found it easy to pin down.
For the avoidance of any doubt, let me make it clear that I’m very sympathetic to Debbie Purdy, am in favour of legalising assisted suicide in some circumstances in this country, was attracted by Lord Falconer’s recent attempt to amend the law and wish it had succeeded. Charon interviewed Lord Falconer about it earlier this week. But none of that means I think the Law Lords have reached the right legal solution in the case before them yesterday; in fact I think the ruling is a classic fudge which conveniently takes the pressure off Parliament and government – and off the judges themselves – in this morally contested area.
The essence of the judgment is that the legal uncertainty facing Debbie Purdy and her husband – could he be prosecuted after her death if he helps her end her life in Switzerland? – is a breach of her Convention right to respect for private life, a breach which can be remedied by a policy statement by the DPP. The offence of assisting suicide in section 2(1) of the Suicide Act 1961, which creates a blanket ban in all circumstances, interferes with the article 8 Convention right, as held by the European Court of Human Rights in Pretty v UK; although in that case the ECtHR ruled the ban does not breach article 8, because justified, it did not consider whether the ban was “in accordance with the law”. But (see Lord Hope’s speech at paras. 40-53) the offence does not meet that requirement since in the absence of detailed, specific guidance from the DPP, you cannot regulate your behaviour so as to be confident of avoiding prosecution.
It hangs together reasonably well, this analysis. The analysis of Debbie Purdy’s uncertainty in terms of the principle of legality is seductive. But if the blanket ban in the Suicide Act does not meet the Convention test of legality, then the Suicide Act itself must be contrary to article 8. How can the uncertainty caused by the breadth of the law be cured by intervention from the DPP? He is no legislator. Nor does he have power to change the law. As their Lordships stressed more than once, their judgment does not purport to alter the law.
Not do I think their Lordships’ human rights analysis was really about uncertainty – at least, not uncertainty alone. Underlying the speeches is an assumption – in my view a correct assumption – that there are some circumstances which may be criminalised by the Suicide Act, read on its face, but where prosecution would breach article 8. See for instance paragraphs 59 and 68 in Lady Hale’s speech, and paragraph 74 in Lord Brown’s. It is inconceivable that the Lords think the DPP’s guidance might say he will prosecute every case including Debbie Purdy’s husband, yet if the only issue really is uncertainty that might be a lawful outcome. The truth, surely, is that the Lords see the broad ban on the face of the Suicide Act as problematic in its substance.
Once you are of the view that section 2(1) on its face goes too wide and would breach article 8 if so widely enforced, then in terms of the Human Rights Act the alternatives are as follows. Either it is a fundamental feature of the legislation that it should criminalise conduct so broadly – in which case the legislation itself is incompatible with article 8, and the Lords could make a declaration to that effect. Otherwise, the provision can and must be read down under section 3 so as to be compatible with article 8. But none of their Lordships talked of possible incompatibility at all, or even considered section 3. Why not?
Had the Lords ruled the Suicide Act incompatible with article 8, they’d have set off a political and moral storm. The Act would have remained untouched; Debbie Purdy would have remained in the same position; Parliament would have been forced to confront the possibility of doing something. It would have been brave of the Lords, since it would be obvious they disagreed with the ECtHR which ruled the Suicide Act complies with article 8. They do disagree with it anyway, of course, because they say the ECtHR missed the “accordance with law” trick.
Had the Lords read the Suicide Act down, saying section 2(1) does not apply in Debbie Purdy’s situation, that would have been brave, too: there’d have been a storm of criticism that the Lords were legislating rather than interpreting law, usurping Parliament’s functions and indulging in unwarranted judicial activism. But that approach would seem to me perfectly defensible in terms of the Human Rights Act. If Parliament disagreed, it could amend the Suicide Act to restore its breadth.
But they’ve preferred a “third way”. I think the Lords were faced here with a situation in which their judgment might have had dramatic ramifications: but they’ve avoided them by alighting on an easy way out. Just as Parliament is afraid of this issue and would prefer it to be sorted out by judges, so the judges have shown themselves nervous of it too. And rather than smash the ball back into Parliament’s court, which I think a more rigorous application of the Human Rights Act would have required – whether or not their Lordships felt able to read the Suicide Act down – the judges have preferred to pass the moral parcel to the DPP, who is, in reality, given the task of coming up with new and better legislation. In doing so he will conveniently relieve the judges of the awkward task of interpreting the law clearly, and Parliament of the awkward task of revising it.
It’ll be interesting to see whether the DPP’s guidance will itself be challenged: that’d be a good thing as it would shift the focus where I think it should be, on what substantive law we need in this area. If on the other hand the DPP manages to come up with a policy no one wants to challenge, he’ll have performed his part brilliantly in what may be the very best kind of establishment fudge.
Some of their Lordships considered the fundamental question whether it’s an offence at all to do anything in England to assist a suicide that will take place abroad; Lord Phillips even considered whether assisting a suicide abroad might be murder in the law of England and Wales. Those seem to me important questions that I wish their Lordships had invited argument on and decided – again, their reluctance to do so was understandable, but arguably showed a lack of courage.
The Purdy judgment worries me. In finding a way of seeming not to change the law, the Lords has indirectly wished such a change into being by handing inappropriate power to an official. It’s cleverly avoided apparent politicisation, and come up with a way forward that might suit if not everyone, then many people including Parliament and government. There’s a good case for judges being braver, more naively legalistic and less politically sensitive than this. I fear a bench with such political nous.