Lords judgment: Kay v Metropolitan Police

November 27 2008

The other Lords judgment yesterday came in this interesting case about section 11 of the Public Order Act 1986, and whether Critical Mass is a procession requiring to be notified to the police, or is exempt under subsection (2) as a procession which is “commonly or customarily held”. Critical Mass is a gathering of cyclists on London’s South Bank which, one Friday each month, sets off biking around London in all sorts of directions, the cyclists making up their routes as they go along. Critical Mass had won in the Administrative Court, but that was reversed in the Court of Appeal, a majority thinking a procession has to have a route in order to be customary.

The Lords have reversed things again, unanimously holding, in favour of Critical Mass, that it is a customarily held procession and that its route does not have to be notified. Beyond this narrow question, though, Lord Phillips and Lord Brown say that Critical Mass is not a public procession at all: section 11 doesn’t apply to it, so it doesn’t need the benefit of section 11(2).

I’m interested in the facts themselves of course, and in the result, but I’m also interested in the way the Lords dealt with this “wider issue”. Lords Rodger and Carswell dodge the issue completely, while Lady Hale ducks out of it I think for the very bad reason that she apparently sympathises with Critical Mass – see paragraph 53. Lord Phillips deals with it obiter, but I think Lord Brown’s approach is the right one, and admirable. Since his view is that Critical Mass is not a public procession, he rightly sees that as the conclusive legal issue: the “narrow issue” becomes merely academic, and, as he rightly says, meaningless. I hope the Supreme Court when it starts work takes his robust approach to the straitjacketing of legal issues as happened in this case.

The brilliant Law in Action covered the case back in October – you can see a short video of Critical Mass here, and I think you should still be able to listen to the programme by downloading the podcast.

2008-11-27T13:53:00+00:00Tags: , , , , , |

Lords judgment: R (JL) v Justice Secretary

November 27 2008

The first of yesterday’s Lords judgments was in this human rights case, about the standard of investigation required by the article 2 Convention right to life, when a prisoner attempts suicide and fails, but injures himself seriously. In this case, JL tried to hang himself at Feltham YOI, and suffered serious brain damage from lack of oxygen.

Their Lordships decided unanimously that some kind of enhanced investigation is required by article 2, involving the prisoner or his representatives: a mere internal investigation is not enough. The investigation need not initially be the type of inquiry required in R(D) v Home Secretary but the public interest may require such an inquiry depending on the circumstances: how much the evidence is conflicting, the extent to which witnesses are cooperative, the extent to which failings appear to have contributed to the injury, and the nature of what happened itself.

2008-11-27T12:49:00+00:00Tags: , , |

Lord Rodger’s Renton lecture

November 26 2008

Last night I heard Lord Rodger of Earlsferry give the first Lord Renton memorial lecture – his subject being “interpreting statutes today” – and an interesting lecture it was, too.

He spoke about the importance of close reading of provisions in the context of a statute as a whole, and told the audience that he thinks counsel in the House of Lords do not pay enough atention to that – preferring to bombard the court with reams of extrinsic material like reports, white papers and so on. Lord Rodger clearly isn’t hostile to that – he said he thinks arguments about whether such material, including Hansard debates under the principles in Pepper v Hart – simply watse time and costs to no good purpose since almost all the material is irrelevant anyway. They might as well look at it, then ignore it, in other words.

He also made a point that seem obvious once someone points it out to you: that the use of extrinsic aids to intepretation has expanded as a result of technology: first, the advent of photocopiers in the 80s, which meant foreign cases, reports etc. could easily be put before a court if found, and then the rise of the internet which means things are very much more easily found, and Hansard more easily searched. Funny, he said, that this has resulted in a greater use of external material by judges just as the drafting of bills has become more professional and precise. In theory, the old-fashioned approach of focusing on textual analysis to the exclusion of anything else – and approach Lord Rodger showed had been and could be taken to ludicrous extremes – would be more appropriate now that it had been when it held sway. Lord Rodger clearly wishes less time were spent on external guff and more on detailed construction, though.

He also shared some sideways thoughts about legislation – for instance, that no UK statute includes the words roughly or perhaps. Not certainly, either.

2008-11-26T13:55:00+00:00Tags: , |

German anti-terror proposals

November 24 2008

I thought you’d be interested in a couple of stories (in English) about the German government’s proposed new BKA law (Federal Crime Agency law, would be my translation) which is proving controversial because it will give the BKA new powers of intercept and “cyber-spying”, through remote online searches of computers. The proposals have passed the Bundestag, but I think are still being discussed in the Bundesrat, so opponents still have some chance of lobbying and getting more safeguards.

2008-11-24T14:33:00+00:00Tags: , , |

Not quite a blawg

November 21 2008

Joshua Rozenberg has started something like a blawg on the Telegraph‘s website. He specifically says it’s not a blog: though his reasons are wrong, if he thinks blogging means you write about yourself or simply recycle stories and opinions from other sources. I’m sorry he has such a limited view of what blogs can be, and surprised, given his wife’s success with blogging. But in a way he’s right – normally people would be able to comment on a blog, and you can’t on his site, which is a pity. It’d have been good to welcome him fully to the UK blawg world.

Small quibbles, though, those – I’ll be watching his feed from now.

2008-11-21T10:03:00+00:00Tags: , |

S v Chief Constable of West Mercia and the CRB

November 21 2008

I’m interested in this quite worrying judicial review case decided on Tuesday – worrying in that it shows how the criminal records system can easily be abused to undermine the presumption of innocence, though I suppose reassuring in that it also shows that the courts will be prepared to find such slack behaviour on behalf of police and CRB irrational.

S had to apply for an enhanced criminal records check – as many people do now, when taking up a range of paid and voluntary jobs. When it came, included on its were details of charges against him in 2004 of “outraging public decency”, subsequently changed to charges under section 5of the Public Order Act 1986, by jogging on the Lickey Hills “minus his shorts”, which is presumably a way of saying he had his tackle out. The thing is, S had been acquitted of those charges, a witness having testified that he was elsewhere at the time of one of the alleged offences. The police had lost the file and had no idea why he might have been acquitted; and so their default position was to conclude that the allegation might have been true. An approach that might have stopped him doing any rugby coaching ever again.

Fortunately he’s won his judicial review, although of course that doesn’t change the fact that this disclosure did happen, and affects his relationship with his rugby club.

As readers will know, I’m not a fully-paid up civil liberties activist – my views vary depending on the issue – but this kind of case does bring out the David Davis in me. Troubling.

2008-11-21T09:43:00+00:00Tags: , , , , |

Lord Lester on the government’s plans

November 20 2008

Lord Lester also spoke in Tuesday’s debate, and although he didn’t give a full explanation of why he resigned from his role as a government adviser recently, he did give some clues. He obviously hoped for a much more radical approach to reforming the prerogative, in particular, than the government plans.

Fair enough, in some ways: I’m interested in his idea that British citizens should have a right to a passport (limited by law, presumably) and generally agree with his desire to establish Parliamentary control over treaty-making and war, although I’m not at all sure such control is best established by statute. As far as war in concerned I think we already have an emerging convention that Parliament must approve the commitment of troops, and I think that will work pretty well if we allow it to develop.

On the role of the Attorney General I think he’s plain wrong: I think the fashionable idea of reforming the Attorney’s role is simply a product of some people’s strong feeling that Lord Goldsmith was wrong about Iraq, and desire to cut him down. People should realise he’s gone now (I supect many don’t: I noticed Nick Clegg called him “the Attorney” on the radio the other night, and I think there’s a “Bishop of Durham” effect with him – nobody knows who any Bishop of Durham has been, since the famous one) and that they can stop tinkering about with Baroness Scotland’s role. It’s time-wasting, tidy-minded and pointless.

And while Lord Lester is entitled to support section 145 of the Health and Social Care Act, if he thinks the YL case which section 145 reverses was wrongly decided – well, I disagree with him again.

2008-11-20T17:10:00+00:00Tags: , , , , , |

Lord Pannick’s maiden speech

November 20 2008

David Pannick QC was made a Lord not long ago; and now he’s made his maiden speech, about the relationship between ministers and the judiciary, essentially. I’m glad he agrees with me about Paul Dacre, and I agree with his suggestion that it’s paradoxical, in a time when we seem to be more concerned than before about the separation of powers (a little too tidy-mindedly and abstractly for my taste), that we should look to the Lord Chancellor to defend the independence of the judiciary. But I’m not sure I agree with him about judges speaking up in defence of themselves. I’d have thought it better for judges to treat ill-informed criticism with what George Brown once called “complete ignoral”. I think there is a role for people like him, writing in the Times and now speaking in Parliament, to speak out against the Paul Daces of this world.

2008-11-20T13:00:00+00:00Tags: , |
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