Category: Courts and the administration of justice

Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court

1st October 2024

In the main courtroom of the Supreme Court there are the benches – really desks – where the Supreme Court judges sit, and at each place there is a microphone for each justice, with a button they can press when they want to speak.

But at the head of the bench, at the centrally placed desk, there are two buttons: one for the presiding justice to press when they want to speak, and one (I am told) which they can press to turn off all the other microphones in the courtroom – justices and advocates alike.

If you ever want to think about true judicial power, think of that second button.

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I know this because I have had the privilege of judging moots in that seat and in that courtroom. It is a splendid space, adapted from the old (indeed, olde) magistrates’ court, and still with some of the old (olde) furnishings, with an imposing portrait of that famous eighteenth-century magistrate John Fielding. But it is also up-to-date, with discreet working electronic paraphernalia and – again showing true judicial power – working radiators.

You couldn’t want a more “common law since time immemorial” feel to a modern courtroom if you tried. The only fault is the garish carpet, which must be the worst-looking carpet in England, and perhaps even the worst in the world.

There are courtrooms over at the Royal Courts of Justice that are superficially more imposing – but they are really museum pieces, without working radiators and often without any working electronic paraphernalia.

Anybody with experience of the variety of English courtrooms, up and down the country, cannot but think that it would be a good thing if more courtrooms were up to the standard of those in the Supreme Court. It is a great space, but it is not a representative one.

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When the Supreme Court was established fifteen years ago, it was a sensible decision to house it in a new building, and the choice of the old (olde) Middlesex Guildhall on the side of Parliament Square was inspired – historically, architecturally, and geographically.

From an Anglocentric perspective, it is as if the four elements of the ancient English state are on the four sides of the same public square: the Palace of Westminster (parliament), Whitehall (executive), Westminster Abbey (the established church), and now the Supreme Court.

Before then, the highest court was housed in a corridor somewhere in the Palace of Westminster, and was in form as well as in location the judicial committee of the House of Lords.

The notion was that the appeals that went to the House of Lords were heard by the judicial committee of that house. The committee could – and indeed was until the days of the Blair premiership – attended by the Lord Chancellor, a cabinet minister who was also entitled to sit in a judicial capacity.

As a system it sort-of-worked, even though it was conceptually untidy.

And so when the Blair government proposed a new supreme court to replace the judicial committee the opportunity was taken to assert the independence of the court with a new building. It also had its own budget and even it own website url (and not any gov.uk url). It even had its own remarkably impressive law library. And it is a lot easier to visit than the old judicial committee.

In terms of symbolism there could not have been a more emphatic (and welcome) break with the muddle-through of the old House of Lords regime.

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But.

Changes of form are not always changes of substance.

In many ways the new Supreme Court does much the same work as the old House of Lords committee – with a high proportion of impossibly dull complex tax cases.

And it is often the same sort of judges – and at one point recently the twelve-judge court had four Davids. (And Davids really do not need such disproportionate representation.)

Yet there are a couple of interesting changes.

First, the court is taking its role seriously as a constitutional court. This is in part because part of the constitutional reforms fifteen years ago was that it would hear certain devolution-related applications in addition to its main workload. It is also because circumstances meant that it had to deal with controversial constitutional cases, such as the two Miller cases.

But it has not got carried away – as a sequence of cases shows the court has firmly refused to extend its role in respect of policy decisions. The court will not duck the big constitutional cases – but it certainly will not decide them in a way that would always please activist liberals.

And second, the court has done as much as it can to make its hearings and judgments accessible ot the public. Its website has a great deal of detail on each upcoming case – sometimes even including documents such as skeleton arguments, video footage is made available of hearings, and the judgments are handed down with useful summaries.

Over time, as generations of law students (and interested lay people) come and go, this accessibility will be a gradual boon to the public understanding of law. The effect will not be dramatic and immediate. But having ready access to such materials can only have a positive effect.

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The court is not perfect – and there still needs to be fundamental reform of the parallel judicial committee of the Privy Council which also sits in the same building with the same judges.

But fifteen years on, it deserves a couple of cheers from those who take the separation of powers and judicial independence seriously.

And perhaps the court could mark the anniversary by, say, treating itself to a brand new carpet.

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On writing – and not writing – about miscarriages of justice

23rd September 2024

(“…Punish the Wrongdoer” – at the Old Bailey, London – which presumably means implicitly not punishing the innocent: source.)

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I was going to do an article over at Prospect about the Lucy Letby case, with an accompanying more detailed post here. But I have now put it on hold.

There are four reasons for this.

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First, the online context for the article and post was (and is still) too heated and partisan.

The article and post are about what it would mean for such a case to be a miscarriage of justice or not: in effect, a guide to how to think about that and other cases where it is contended there is an unsafe conviction.

As such the article and post would not take a “side” – but it seems there is currently little appetite for anything other than which maintains Letby is either innocent or guilty.

And like Pavlov’s puppies, there are individuals who just need the slightest pretext to describe something as a “conspiracy theory” – even when no conspiracy is posited, and still less is there any theory.

(For an Anglo-Saxon empiricist and pragmatist to be called a “theorist” is perhaps as objectionable as being called a “conspiracist”.)

(And for more on whether miscarriages of justice require a “conspiracy theory” see here.)

On the other “side” there will be those just as irked at a legal blog setting out that the various scientific and statistical points being made by critics of the convictions, even taken at their highest, can only go so far in this particular case

So I am waiting for the online context to calm down.

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Second, there is the beginning of the Thirwall inquiry.

Any half-decent article and post on the Letby case would now need to take account of the additional information that will be available from the inquiry, in addition to the information from the court litigation.

And so I am now also waiting for that inquiry to get to an appropriate stage.

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Third, there is the risk of what can be called the “one sample” fallacy.

And so I wanted to look at other actual and contended miscarriages of justice, so to see the problems that have come up before and how, if at all, those problems were addressed.

I also wanted to see if the folk memory of past notorious miscarriages of justice accorded with the actuality of what was decided by the court.

When I re-looked at the Roy Meadow case reports, for example, they did not quite say what I recollected those cases saying.

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And fourth, I wanted to set out some preliminary points – like the role of juries and how it is for them to weigh evidence (once that evidence is admissible) – in a separate post or posts.

(In first go at the Letby article, I was 2,000 words in and I still was explaining in general terms the role of juries in weighing evidence.)

Sometimes an article and a post can (try to) do too much, and I got a sense that this was the situation here.

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As I have said before, I have no ultimate view on the guilt or innocence of Letby – and that is for a jury or a court of competent jurisdiction to decide, and not a blogger or someone who reads a blog.

But it is a case which may provide a useful basis for helping lay people understand how the justice system works (or may not work) and what a court can and cannot do.

And for the Letby case in particular, what else the legal system could have possibly done when Letby and her lawyers elected (for good reason or bad) not to put expert evidence before the jury themselves.

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Miscarriages of justice do happen – especially when there is reliance on expert and circumstantial evidence; but that does not mean that every case where there is reliance on expert and circumstantial evidence is (or is likely to be) a miscarriage of justice.

That misconception can perhaps be called the prosecution critic’s fallacy.

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And so in the meantime before I publish something more substantial on Letby, let us look at other cases where the has been an actual or alleged miscarriage of justice.

Let us look at the case of Oliver Campbell, which I wrote about here and here.

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Miscarriages of Justice: the Oliver Campbell case

21st September 2024

A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong

30th August 2024
One accusation that is often made of anyone with an interest in possible miscarriages of justice is that they are “conspiracy theorists”.

In reality, however, you do not have to posit a conspiracy to explain when things go wrong with the legal system.

In particular, what happens in the justice system is that the safeguards and checks which exist to prevent or minimise miscarriages of justice sometimes do not work properly.

Just as a conspiracy can perhaps explain a car accident, the explanation is more likely to be brakes failure, or driver error, or so on. One or two things go wrong, and then the whole thing crashes.

As some Medieval chap put it, explanatory factors should not be multiplied beyond necessary.

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Indeed, a number of not directly connected people acting in concert to achieve a common goal is what is required for the justice system to work consistently properly.

And we all know unlikely that is.

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Update – what is coming up.

Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024
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One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

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We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

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This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

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One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

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In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

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In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

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Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

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Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

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But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice

19th August 2024

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable

7th August 2024

On the site that is still known as Twitter, Elon Musk has again tweeted that ‘civil war is inevitable’.

The thing is that civil wars are rarely inevitable – at least not in the short- to medium-term.

This is because civil wars occur, almost by definition, where there is some kind of pre-existing polity which has broken down.

This is what makes them ‘civil wars’ as opposed to any other form of human conflict.

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A polity often has two key features.

The first feature is a means of regulating disputes – political, legal, social, religious disputes, and so on.

The second feature is a means of enforcing order – usually a form of legitimised coercive power.

It is only when a polity fails to resolve a dispute and then does not enforce order that there risks being a civil war.

The presence of perceived contradictions within a given society is not sufficient: a ruler or ruling class can be quite adept at keeping power despite significant domestic discontent.

Some polities – from tyrannies to loose confederations – can exist when with stark differences between those who are governed.

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In the longer term, there may be a case for a ‘civil war’ being inevitable.

Most political systems will break down eventually, after a century or two.

In what is now Great Britain and Ireland there have been various civil conflicts on and off for hundreds of years.

If Musk waits long enough then there may again be a civil war one day.

But one suspects that is not what he means.

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What is often meant by those who say civil conflict is inevitable is that they normatively think that civil conflict should be inevitable.

That they believe there should be a civil conflict on socio-economic or ethnic or religious or some other lines within a given polity.

But, to adapt Karl Marx, ‘the history of all hitherto existing society is the history of those in power often staying in power to the frustration of those who want to have a revolution’.

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Civil wars are rarely inevitable.

And civil wars deliberately brought about and signalled in advance are rarer still.

If the polity fails to resolve the underlying disputes in a given society – including by the means of effecting fundamental constitutional or socio-economic changes or by granting autonomy or independence to a certain part of the polity – then there is the additional hurdle of the state being normally in a strong starting position to enforce and maintain order.

To say that one thinks normatively there should be a civil war is not the same as saying positively that there will be one.

Yes, every polity is capable of collapsing, and a civil war is thereby always a possibility.

But they are often not predictable when they do happen.

And they then only seem inevitable in hindsight.

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How the criminal justice system deals with a riot

5th August 2024

Thirteen years ago, I went along to the south London shopping centre expecting to report on a riot. But there was not a riot.

The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)?

26th July 2024

Often the criminal cases that feature prominently in the news are really not interesting from a legal(istic) perspective.

One could quite happily commentate on interesting legal issues and never engage with a case which has been on the front pages.

And one could follow ‘true crime’ stories and never come across an interesting legal issue.

There is usually not much of an overlap: ‘true crime’ and earnest, plodding legal commentary normally do not have that much in common.

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The Lucy Letby case has been prominent in the news now for some time.

She has been convicted of multiple murders and attempted murders.

But is there anything in her case which is of wider interest – or of concern – in respect of the legal system?

Is there an issue here about the process of criminal justice?

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Some people maintain she must be innocent; and some people insist she must be guilty; and there are many websites and social media posts setting out both of these positions.

This blogpost is not one of them.

I do not know if she is guilty or innocent. That is a matter for a jury – or an appeal court.

She may be a serial killer, or she may be a victim of a miscarriage of justice; that is for others to decide.

But there is, I think, an issue here of potential wider concern.

This may be a rare example of a front page ‘true crime’ story which also raises an important issue about the legal system.

And that issue is about the role of prosecution expert evidence in an adversarial criminal trial when the defence elects not to put in their own expert evidence (for good reason or bad).

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Lucy Letby was convicted, in part, on the basis of expert evidence.

The case against her was not entirely based on expert evidence; there was other evidence put before the jury.

But, on any view, it was an expert evidence heavy prosecution.

And that is not unusual – or wrong: there are many criminal prosecutions which depend on expert evidence.

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In our adversarial system, what often happens in a jury trial when there is reliance by the prosecution on expert evidence is that there is also expert evidence put forward by the defence.

In principle, the expert owes their duty to the court – and not to the party who has instructed him or her.

In practice, of course, the prosecution will put forward expert evidence that supports their case, and the defence puts forward expert evidence which supports their case; the experts are then examined and cross-examined by lawyers; the judge sums up; and the jury then weighs the evidence of the experts in its deliberations.

This system is not perfect, and indeed no litigation process is perfect; but it generally works.

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But what happens when the defence, for some reason, does not put in their own expert evidence?

The prosecution expert evidence will still be examined and cross-examined by lawyers – and the judge will still sum up, and the jury will still deliberate.

But the questions of the lawyers – especially the cross-examination – are not themselves evidence.

The only expert evidence is that put in by the prosecution.

The jury do not get to compare and contrast the expert evidence of the prosecution and the defence; the judge gets only to sum up the expert evidence of the prosecution.

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In the first Lucy Letby trial, for some reason, there was no expert evidence put in by the defence.

We do not know that reason.

What we do know is that the defence team continued to act for her on appeal and so it would seem that their client is not dissatisfied with the conduct of the defence. This would indicate that there was, at least for their client, a good reason for not putting in expert evidence, else – presumably – she would have instructed new counsel for the appeal.

If so, could there be a good reason?

Yes, indeed there could be more than one good reason – though this is supposition, for we do not know the reason.

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One possible good reason for there not being expert evidence put in by the defence has been identified by the experienced criminal barrister Adam King in a strong piece setting out why there may be a miscarriage of justice in this case:

“One reason the defence might have chosen not to call Dr Hall (and I am speculating here) is if they felt they had so thoroughly undermined Dr Evans that they were better off leaving it at that. That would be a big tactical call, but covering your own back is not always consistent with protecting your client’s interests.

“So, for example: if your own expert would contradict much, but not all, of the Crown’s expert’s conclusions, and you believe the credibility of the Crown’s expert has been totally destroyed, you might judge it prudent not to put your own expert in the witness box. Avoiding the potential for future criticism and hindsight regret by putting your client in what you believe will be a worse position — by calling your own expert — is not a boss move. This is all speculation, but I guarantee that careful thought went into the decision not to call Dr Hall. None of this, though, would mean the conviction is safe.”

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Another possible reason not to call expert evidence is that your client’s case is that the relevant area of knowledge is such that no actual expertise is possible. This may be because of the lack of reliable data, or because it is a novel or developing area.

If so, calling an expert on that point would contradict that position.

We do know that Letby’s defence lawyers put in a detailed submission at the end of the prosecution case in the first trial that the prosecution had shown no case to answer and that prosecution expert evidence should be ruled inadmissible. It may have been that calling expert evidence would have undermined the prospects of what may have been a successful application.

We don’t know.

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In essence, the decision not to call expert evidence may have been a perfectly legitimate one for Letby and her lawyers to make in the circumstances of her case.

And one should remember – and this is a crucial point – it is for the prosecution to make out their case.

It is for the Crown to prove their case to the criminal standard of proof, and not for the defence to disprove it.

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But.

While it may have been in the interests of Letby and her lawyers not to put in expert evidence, this has the knock-on effect of there being no expert evidence from the defence for the jury to consider.

That prosecution expert evidence may be subject to robust cross-examination – but the questions of the barrister are not evidence, and the jury have to decide the case on the basis of the evidence.

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At this point, many legal folk and others would say that the fault here is with Letby and her lawyers. The defence had the opportunity to put in their own expert evidence, and they did not do so. And that the convictions were the consequence.

But it may be that response avoids a key issue.

It is for the prosecution to prove their case, and not for the defence to disprove it.

It is thereby for the prosecution to ensure that the expert evidence on which it seeks to rely is as sound as possible.

The prosecution cannot shrug off this responsibility and say that it can be cured by the defence expert witnesses.

And there is concern that the prosecution expert evidence in the Letby case was not sound to begin with.

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If that concern about the prosecution expert evidence is well-based – and this is a legal blog and not a medical or science blog, and so like many of you I have no idea – then the question is what, if anything, can and should the legal system do about it – especially when the defence (for good reason or bad) do not put their own expert evidence in.

Here there are rules on what experts can and cannot do and say, and on what their duties are to the court; here there are also rules on the admissibility of expert evidence; and there will also be cross-examination of the expert by defence lawyers.

There are safeguards.

But.

The key safeguard against poor prosecution expert evidence in our adversarial system is that the defence can put in their own expert evidence for the jury to weigh against it.

But when the defence do not do that (for good reason or bad) then there is perhaps a system failure of the adversarial system.

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Here one can (again) say that is the fault of Letby and her lawyers.

But even taking that (fair) point at its highest, there is a potential wider problem.

A lot depends on the soundness of the Letby conviction.

Indeed there is an important public inquiry which is predicated on the basis of the convictions being sound:

If, as some insist, the prosecution expert evidence in the Letby case was unsound, then any inquiry based on that expert evidence being sound will have challenges.

“MD” in the current edition of Private Eye sets out the implications:

“…[the] Thirwall public inquiry may inadvertently be derailed by experts who say under oath that Letby wasn’t stopped sooner because there were far more plausible reasons for the deaths than murder.”

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The cases involving Roy Meadow show that we should always be alert to the problems of expert evidence.

If – and it is an if – the prosecution expert evidence in the Letby case was unsound, then there is a hard question of what else the criminal justice system could/should have done when a defence does not put their own expert evidence.

Given her decision not to put in expert evidence, is it the case that she had the fairest trial possible in the circumstances?

Or is there something else the criminal justice system could/should have done in this case – and similar cases?

It may be that there is a lacuna here – and not one which is easy, or even possible, to address in our adversarial system.

In essence: what can a criminal court do in respect of unsound expert evidence when the defence elects (for good reason or bad) not to put in their own expert evidence?

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.