Category: Courts and the administration of justice

Why the whole-life sentence for the murderer of Sarah Everard is correct

30th September 2021

Earlier today the murderer of Sarah Everard received a whole-life sentence.

Such a sentence is exceptional – the relevant statutory provision sets out five express instances where this sentence can be imposed:

‘(a) the murder of two or more persons, where each murder involves any of the following— (i)a substantial degree of premeditation or planning, (ii)the abduction of the victim, or (iii)sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) the murder of a police officer or prison officer in the course of his or her duty, where the offence was committed on or after 13 April 2015,

(d) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(e) a murder by an offender previously convicted of murder.’

But if you read the provision carefully, you will see that these five categories are not a closed list, but are instead examples of offences where the ‘the seriousness of the offence…is exceptionally high’.

The use of the word ‘include’ in paragraph 2(2) of that provision tells us the list is (as lawyers say) non-exhaustive.

In other words: other offences can warrant a whole-life sentence if ‘the seriousness of the offence…is exceptionally high’ – and what constitutes exceptionally high seriousness can be reckoned by comparison with the five express categories.

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The murderer of Sarah Everard – and, no, I am not typing out his name – does not on the face of it fall within the five express categories.

There was not more than one victim (so not (a)), who was not a child (so not (b)) nor a police officer (so not (c)), the murder was not done for any of the specified causes (so not (d)), and the murderer has no previous conviction for murder (so not (e)).

But these are only five illustrations of where ‘the seriousness of the offence…is exceptionally high’.

That said: it would not be enough for a judge to merely assert that an offence had sufficiently high seriousness so a whole-life sentence can be imposed.

Such a sentence would be open to being successfully appealed.

And so the task of a judge imposing a whole-life sentence when the circumstances are not one of the five categories is a difficult one.

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In the case of the murderer of Sarah Everard it seemed to me before sentencing that there was a real possibility that the judge would find a away to impose a whole-life sentence in this case.

This was because at the sentencing hearing the prosecution set out that it seemed that the offence was committed by a police officer using police powers.

And just as the law on whole life sentences recognises the special nature of police powers at (c) – ‘the murder of a police officer or prison officer in the course of his or her duty’ – it seemed to me that a murder committed by a police officer by means of the use of their police powers was comparable.

https://twitter.com/davidallengreen/status/1443502936336785408

But – as Joshua Rozenberg this morning averred at his blog – it was not inevitable that the judge would find a basis to find an exception in this case – even though on the basis of the (uncontested) evidence set out in court a whole-life sentence seemed appropriate.

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The judge – Lord Justice Fulford – did set out a basis for a whole-life sentence in this basis, and this is contained in paragraph 19 of the sentencing remarks (which should be read in full).

Here I set out paragraph 19 and I insert my comments in brackets:

‘The most important question in this sentencing exercise, therefore, revolves around a question of principle: if a police officer uses his office to kidnap, rape and murder a victim, is the seriousness of the offence exceptionally high, such that it ought to be treated in the same way as the other examples set out in paragraph 2(2).

[Here the judge emphasises the fact that the murderer had used his police powers.]

‘In my judgment the police are in a unique position, which is essentially different from any other public servants. They have powers of coercion and control that are in an exceptional category. In this country it is expected that the police will act in the public interest; indeed, the authority of the police is to a truly significant extent dependent on the public’s consent, and the power of officers to detain, arrest and otherwise control important aspects of our lives is only effective because of the critical trust that we repose in the constabulary, that they will act lawfully and in the best interests of society. If that is undermined, one of the enduring safeguards of law and order in this country is inevitably jeopardised.

[The special position of police in our society is emphasised.]

‘In my judgment, the misuse of a police officer’s role such as occurred in this case in order to kidnap, rape and murder a lone victim is of equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause.

[Here the judge takes (d) as the comparator of the specified categories, and not as I suggested (c) – and you will see why next.  And note: it is not enough for the judge to assert that it was equally serious, and so he has to reason it out.]

‘All of these situations attack different aspects of the fundamental underpinnings of our democratic way of life. It is this vital factor which in my view makes the seriousness of this case exceptionally high.

[The judge argues that the values behind (d) are applicable in this case, as the manner of the murder undermines the rule of law – and now, having made that argument, he ties it to the facts of the case.]

‘Self-evidently, it would need for the police officer to have used his role as a constable in a critical way to facilitate the commission of the offence; if his professional occupation was of little or no relevance to the offending, then these considerations clearly would not apply.’

[Here he is careful to distinguish this case from situations when a murderer happened to be a police officer – for what makes this case exceptional is that the police powers were used in such a way that undermined the rule of law.]

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This sentence may be appealed – and as it rests on an exception rather than an express category, it is possible that the court of appeal may substitute a lesser life sentence.

But.

Lord Justice Fulford is a senior and experienced criminal judge – and indeed it is rare for a Lord Justice to preside at any trial – and the reasoning in paragraph 19 is (in my view) compelling.

It is difficult to imagine better reasoning for a case to warrant a whole-life sentencing outside of the five express categories.

(And, in any case, an appeal may well be moot in this case, as the new sentence is likely to still mean the murderer is never released.)

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Of course: there is a certain arbitrariness in whether a murder gets a whole-life sentence or not.

Had the facts been that Everard had got into that car for any other reason than by use of police powers, the ordeal would have been just as terrifying, but it would not have ended with a whole-life sentence for the murderer.

Or had the murderer only been pretending to be police officer, and so was not actually using police powers, it may also not have ended with a whole-life sentence for the murderer.

Victims of other murderers will suffer as much if not worse than murderers caught by the whole-life categories, but their murders will get shorter sentences.

And, of course, the victims of other murderers are not any less dead.

There is something to be said for the whole-life tariff being the starting point for murder, only to be reduced with mitigation.

(Though many other liberals will disagree, but there is nothing in my view inherently wrong with life-meaning-life for murder, notwithstanding the view of the European Court of Human Rights.)

But.

If there are to be whole-life sentences only for a minority of murder cases, then it must be right that murderers who use the coercive powers conferred by the state to commit those murders are treated as if they are attacking society itself.

And this is why the sentencing remarks of Lord Justice Fulford setting out how this offence warrants a whole-life sentence are (in my view) spot-on and we should hope this sentence survives any appeal.

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Why we should cherish the Supreme Court of the United Kingdom for complying with the Freedom of Information Act, when other public bodies would not have done

 

5th September 2021

Bless the justices of the supreme court of the United Kingdom.

As you may be aware, there has been a substantial – and amusing, even embarrassing – disclosure under the freedom of information act of documents relating to the departure of former supreme court justice Jonathan Sumption.

A pdf of the disclosure is here – and it rewards being read in full.

I was alerted to this disclosure by this thread from Adam Wagner.

And Joshua Rozenberg has set out a characteristically detailed post about the situation on his blog.

My post is just a footnote to the disclosure and Rozenberg’s post – from the perspective of a former central government freedom of information lawyer.

And, in summary, the footnote is: bless.

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By which I mean no disrespect to the justices of our supreme court.

Quite the opposite: they should be cherished.

For they must be the only senior public sector officials who comply with the freedom of information act in the spirit in which the legislation is intended.

Senior figures at any other public body would have worked with their freedom of information officer to invoke cynically any exemptions to delay and/or block publication.

Indeed, most senior figures in public bodies would not have been so naive as to create things which are capable of being FOId in the first place.

If the freedom of information act worked as it was supposed to work than the sort of disclosures we now have from the supreme court would be commonplace throughout the public sector.

But it isn’t, because it doesn’t.

The freedom of information act is, in effect, an ornament not an instrument.

There is not real sanction for non-compliance or evasion – and any appeal will take years to get anywhere.

It is almost impossible to have disclosure from a public body against its will.

And it is actually impossible to do it short of years’ long process of appeals.

Everyone concerned knows this.

And non-disclosure letters from public bodies are the most dismal, unconvincing and insincere documents produced by public bodies.

Nobody produced in the production, dispatch and receipt of a freedom of information non-disclosure letter has any sincere belief in the contents.

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A bit like pizzas, in a way:

Source: The Onion

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The supreme court, bless them, has taken the scheme of the freedom of information act seriously – and thereby taken the rule of law seriously.

Good on them.

For even though there is no real risk of sanction – nor even compulsion – the supreme court has followed the act, and it made potentially embarrassing disclosures properly.

More than (yet another) ponderous extra-judicial speech about the ‘rule of law’ this disclosure by itself shows how the supreme court takes the rule of law seriously.

As a supreme justice once averred in another context: that is a relief.

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Slaves as merchandise: what the first reported English case law on slavery tells us – the Butts v Penny case of 1677

13th August 2021

This blog recently looked at the end of the Atlantic slave trade, with the last (known) surviving transatlantic slaves and what their lives told us about law.

The last (known) victim died as recently as 1940, that is within the lifetime of four sitting United States senators.

This blog now moves to the beginnings of how English law dealt with slavey, with the Butts v Penny case of 1677.

(This is the first of an intended series of posts, dealing with cases on slavery and the slave trade.)

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Before we look at the case, there are three points of context.

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First, and by way of background: there was (supposedly) by the 1600s no (formal) slavery in England.

There had been been something known as ‘villeinage’ – where villeins, like human garden gnomes, were in effect held to be property fixed to the land.

Villeins however had (limited) legal protections, and could not be bought and sold like mere chattels.

By the 1600s, however, villeinage had in substance ended.

But it was the nearest English law had, at that point, to the notion of slavery.

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Second: by the 1670s English merchants had been happily and deeply involved in the slave trade for over a hundred years.

The slave trader John Hawkins was trading in slaves as early as the 1560s.

So impressed were those at the time with this trade in slaves that when Hawkins was granted a coat of arms, on its crest there was ‘a demi Moor in his proper colour, bound and captive’.

The role of English merchants in the trade in slaves was thereby not something that those at the time were somehow ashamed of – it was something openly celebrated.

At the time, a coat of arms was among the most public statement about a thing a person could make.

‘a demi Moor in his proper colour, bound and captive’

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Third: by the 1670s the trade in slaves even had the official recognition of the English state.

As early as 1618, James I had supported the establishment of a ‘Company of Royal Adventurers Trading into Africa’ and in 1663 a royal charter was granted to the Royal African Company.

So although the English courts had not yet grappled with the slave trade in its case law, and although it was a concept not (directly) known in English law, slavery and the slave trade was certainly something that was legally recognised and sanctioned.

For a court in 1677 to decide that there could not be a trade in slaves would go against both over a hundred years of actual mercantile practice and over fifty years of official support.

The odd thing, perhaps, was that it took so long for a dispute to reach the English courts to be reported.

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For completeness, mention should now be made of a 1569 case: Cartwright.

This is the case where (supposedly) it was held that ‘England was too pure an air for a slave to breathe in’.

The problem is that this celebrated – and later much-quoted – case was that it was not reported (that is, recorded) at the time, and we only know about if from later mentions in the 1700s.

Like a lost Shakespeare poem that we know about only from quotation, we do not have the original.

And it not being reported at the time, it had no contemporary impact or wider significance – if a judge said those rousing words at all.

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So we come to the 1677 case of Butts v Penny.

Here we have two law reports.

The first is from a collection of cases reported by the judge Sir Creswell Levinz.

Unfortunately, the Dictionary of National Biography tells us, that is ‘some division of opinion among English judges as to Levinz’s merits as a reporter’.

His report is here – and it is one brief report among many others he reported:

The other report is not from a judge nor even from a practising lawyer, but from an endearingly obsessive non-practising barrister called Joseph Keble, who just turned up to court every day to report cases that ended up filling twenty volumes.

His report differs from that of Levinz – and is even shorter:

Again, for Keble this was just one report among many, many others.

Neither Levinz nor Keble emphasise their reports of this case, and if you scroll (or leaf) through their reports, the report is just reported like any other.

The fact that the case was about slaves did not strike either reporter as being especially noteworthy, and presumably it did not strike their contemporaries as being that noteworthy either.

The reports are not consistent – for example, one says 100 slaves and one says 10 (and a half?).

As Levinz may have been a/the judge in the case, and is anyway the more senior lawyer of the two, his report would normally be preferred – regardless of his mixed reputation.

What does this case tell us?

First: Butts (the plaintiff) had bought slaves, and that Penny (the defendant) had taken them.

Second: Butts was suing Penny on the basis of ‘trover‘ – which means that Butts was not demanding the physical return of the slaves but was suing for their cash equivalent.

This was thereby a commercial case – and trover cases were a commonplace of the time – but unlike most commercial cases (then as now) this had not settled and so had to be determined by a court.

Third: the value or other importance of the case was such that Penny instructed a lawyer, Thompson, to put the defence – on the law, rather than on the facts.

Fourth: the lawyer Thompson put the defence that there could not be property in people – Keble says the lawyer compared the situation with the then extinguished state of villeinage.

Had the court sided with Thompson’s submission on this then perhaps the history of the law of slavery would have taken a different direction.

But after a century of English slave trading and given the royal sanction for the slave trade, it would have been a robust court that would have made such a decision.

Fifth: the court deferred to mercantile practice – the custom of merchants.

In essence: because as a commercial fact slaves were bought and sold, then the court must accept that slaves could be bought and sold.

Slaves had fewer protections than villeins – indeed no legal protections at all.

Slaves – human beings – were ‘merchandise’.

And as merchandise, they could thereby be the subject of an action for trover.

Like any other property.

And sixth: the court made reference to the slaves being ‘infidels’ as if that somehow reinforced the decision made.

And so the plaintiff won.

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The striking thing about this case is, well, just how un-striking it was at the time.

A commercial case among hundreds of others, with the briefest (and inconsistent) law reports.

The court just nodded along with the custom of merchants.

And that was that.

No outcry, no obvious public attention.

The same matter-of-fact, bureaucratic mentality that was to be a feature of how the English courts generally dealt with the issue of slavery for the next hundred or so years.

The court did not even seem to regard itself as making new law or establishing any precedent – it was instead just applying existing commercial law to yet another form of property.

As if it was completely normal.

One can presume that before 1677, similar cases would have settled on the assumption that slaves were ‘of course’ merchandise and so could be subject to an action in trover.

Only this otherwise unknown Mr Penny went to the length of litigating the case to court, employing the lawyer Thompson to raise a legal (rather than evidential) defence, and then Mr Penny lost.

Butts v Penny is an unexceptional exceptional case.

Exceptional to us, as we see human beings casually reduced to ‘merchandise’.

Unexceptional to those at the time, other than Mr Penny getting his lawyer to make a spirited but futile defence.

And this was the first mark on the legal record of how English courts would practically deal with the slave trade.

As Hannah Arendt said in a different context, this is how banal an evil can be.

**

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The last surviving transatlantic slaves and what their lives tell us about the law

11th August 2021

As part of my research into slavery and the law, I want to ascertain the chronological parameters of the transatlantic slave trade.

At one end, in the sixteenth and seventeenth centuries, there is the emergence of the trade in the days when the legal system(s) were very different to now – with rights of action and forms of property with which many modern lawyers would not now be familiar.

But what of at the end?

Of course, we all know that the trade had (supposedly) ended by the early to mid nineteenth century.

But in fact the last victims of the trade were alive until modern times.

The last (known) living victim did not die until 1940 – within the lifetime of four currently serving United Senators

And if one looks at the lives of the last three of those who are known to have survived, you get some interesting insights into the role of (relatively) recent law in respect of transatlantic slavery.

The survivors names were Oluale Kossola (also known as Cudjo Lewis), Redohsi, and Matilda McCrear – see here, here and here.

The ‘legal’ insights one gets are:

– how transactions were still being made in Africa, and how the supply of slaves was still organised so as to meet demand;

– how the traders deftly evaded justice – by procedural delays, as well as destroying evidence and hiding the human evidence – and also by jury verdicts;

– how survivors did not have the automatic benefit of American citizenship after emancipation because they were born abroad; and

– how one of the survivors even sought compensation (presumably in the 1920s or 1930s) but the claim was dismissed.

These examples touch on modern legal issues – the existence of illegal markets, criminal prohibition and its avoidance (both in substance and by gaming procedure and evidence), rights of citizenship, and rights to compensation.

The story of the transatlantic slave trade lasted some five hundred years.

The story goes from the legal days of actions in trover and assumpsit to the laws that exist today.

It was far more extensive both in scope and duration than many would realise.

In a way, the story of the slave trade is the story of modern commercial law.

**

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The Animal Welfare (Sentience) Bill does not do a lot – but the little it does do should be welcomed

9th August 2021

Over at the Times there is a news report about the Animal Welfare (Sentience) Bill currently before parliament.

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One response to this news is to doubt that cabinet ministers are sentient beings.

https://twitter.com/davidallengreen/status/1424658384020819971

But that would be silly.

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The bill is worth looking at, both for what it does and what it does not do.

The six-clause bill – with three operative clauses – does very little.

Clause one provides for an ‘Animal Sentience Committee’ to be established and maintained.

There is, of course, no need for primary or indeed any legislation for a committee to be formed.

Committees can be formed and dissolved informally in central government.

Clause two provides that the committee ‘may’ (not ‘shall’ or ‘must’) produce and publish reports on which government policies might (not necessarily will) have ‘an adverse effect on the welfare of animals as sentient beings’.

The committee also ‘may’ (again not ‘shall’ or ‘must’) make recommendations for how the government may have ‘all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings’.

Again, this is weak stuff – the committee would have no legal obligation to produce any reports or recommendations at all.

The bill certainly does not place a direct statutory duty on departments to have ‘all due regard to the ways in which [a] policy might have an adverse effect on the welfare of animals as sentient beings’.

(Though such a duty should, in my view, exist.)

Clause three – the last of the operative clauses – is the one where there is (slight) legal kick.

When a report is published, the government ‘must’ (and not only ‘may’) lay a response before parliament within three months.

The government’s response may be in the barest terms, just saying the report and any recommendations are noted, and it will have discharged its duty.

And that is it.

That is all the bill does.

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On the face of it, there is nothing in the bill that warrants the response of some ministers as described in the Times article.

In particular, there is little formal scope for anything to be ‘hijacked’ by ‘activists’.

And even if the committee were to publish a critical report packed with ambitious recommendations, there is nothing which would legally oblige the government to do anything different from what it would want to do anyway.

The bill (like the international aid legislation and other examples) is not especially substantial legislation.

One is not surprised that the government’s website says that the bill is ‘enshrining sentience in domestic law’.

That word: ‘enshrining’.

Hmm.

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But.

Perhaps because of my own bias (as a supporter of animal rights), I think there is something to be said for this legislation, weak as it is.

Even if there is no legal obligation on the government to follow any recommendations, it does oblige the government to publicly address any report and thereby any recommendations.

That obligation may turn out in practice to be as ultimately ineffective as the similar obligation on the government to report on why it is not complying with the international aid target.

It is, however, better than nothing.

It forces some accountability.

This duty being placed on a statutory basis makes it a little more difficult for the government to ignore any concerns altogether, which would be the case if the proposal had not statutory basis at all.

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The definition employed by the bill for animals – a lovely piece of drafting – is that ‘“animal” means any vertebrate other than homo sapiens’.

This is perhaps a little problematic – as there are invertibrates that are sentient and indeed highly intelligent (as this blog has recently discussed).

As Peter Godfrey-Smith sets out in his outstanding book Other Minds: The Octopus, The Sea, and the Deep Origins of Consciousness:

‘If we can make contact with cephalopods as sentient beings, it is not because of a shared history, not because of kinship, but because evolution built minds twice over.

‘This is probably the closest we will come to meeting an intelligent alien.’

The bill however provides that ‘invertebrates of any description’ can be added to the category of sentient animals by a secretary of state, spineless or otherwise.

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Usually I would be disdainful of such gesture-based ‘enshrining’ legislation – and I am sceptical about much of this bill.

The only direct merit of this legislation is in terms of forcing departments to take account in policy-making the sort of concerns that departments should be taking of anyway.

The recent turn away by the supreme court from allowing policy challenges in judicial review probably means that any non-compliance by a department with the committee’s recommendations will not get any judicial remedy.

But there could be indirect effects – though not the feared ‘hijacks’ of Rees-Mogg and others.

Courts when dealing generally with questions of animal rights will now be aware that the legislature had provided for a formal mechanism for policy recommendations about animal welfare to be taken seriously.

That may not make any direct difference in any litigation, but the existence of a statutory scheme would inform and promote judicial and legal awareness that the welfare of animals is not a trivial or extremist position.

This legislation is a small step towards enforceable animal rights (or at least to an enforceable duty that animal welfare be considered in policy-making) and it should be welcomed for what little it does – though that is a lot less than what its supporters and opponents aver that it does.

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Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

**

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The 2011 Riots, ten years on

1st August 2011

Ten years ago I went along to the south London shopping centre expecting to report on a riot.

At the time I was legal correspondent for the New Statesman, and all that day I had seen on Twitter that, among other places, there would be disorder in Bromley – and I was interested in what the reaction of the police and the courts would be.

But there was not a riot.

And so in a splendid exercise of journalism, I filed a piece on a riot not taking place.

The original piece even had a photograph from me of a deserted Bromley town centre – perhaps the least dramatic photograph ever published by any news organ, and certainly the only one that has ever been published that has been taken by me.

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Elsewhere, however, there were riots.

Following the riots, there were speedy arrests and speedy prosecutions.

And, in turn, there were speedy convictions – and, I recall, very harsh sentences.

At the time the sentences seemed disproportionate and were meant to be disproportionate.

Today, ten years later, it is reported that a prosecutor from the time had/has doubts as to the severity of the sentences.

But at the time, few if any cared – the defendants ‘should have known better’ and they ‘got what they deserved’.

My view at the time was that it would have been better to prosecute and convict on a normal basis – to show that the legal system was not easily shaken into exceptional behaviour.

To, in a way, normalise things.

But those who supported the harsh sentences would point to the (relative) lack of riots since – as if there was a simple monocausal relationship between sentences and riots.

As it happens, many of the preconditions for the 2011 riots still seem present – and, indeed, they are always present.

And one wonders whether the harsh sentences (and decisions to prosecute) ten years ago have done more damage socially in how they have affected the lives of those, as the Guardian piece describes them, were ‘caught up’ in the riots.

Such injustices never are warranted – even as a deterring example to others.

An injustice is always still an injustice.

**

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

https://twitter.com/lukemcgee/status/1420302117705768961

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

https://twitter.com/lukemcgee/status/1420304587576205315

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

**

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Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

*

“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

*

Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

*

So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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*

Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

*

If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

**

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